Mineral Legal Perspective... Unlicensed private mining of granite, alert to the crime of illegal mining.
Published:
2021-02-22
Case from Shandong Gaofa)
Brief of the case
On February 20, the first instance of the Changqing District Court of Jinan City opened a public hearing in accordance with the law to hear a criminal incidental civil public interest lawsuit. According to the allegations of the public prosecution agency, since April 2019, in the Dagou on the west side of Shuangquan Village, Mashan Town, Changqing District, Jinan City, Shandong Province, the defendants Wang Mouyou and Yang Moumou have not obtained a mining license. The construction of the reservoir is profitable for mining and selling rock bodies. Among them, it was sold to the defendant Lu mou 76568 party, with a total value of 2297040 yuan. Defendant Lu Mou, knowing that Defendants Wang Mouyou and Yang Moumou did not have a mining license, bought the aforementioned rock mass there and made a profit from the sale of construction sand in his sand washing site about 200 meters northwest of the excavation site.
According to the appraisal of the First Geological and Mineral Exploration Institute of Shandong Province, the rock body of the mining pit in Shuangquan Village, Mashan Town, Changqing District, belongs to the non-metallic mineral-granite in the Classification of Mineral Resources. After further fine processing, the granite can reach the standard of construction sand, and the construction sand is one of the non-metallic minerals in the Classification of Mineral Resources. The illegal mining activities of Wang Mouyou and Yang not only lead to the loss of national mineral resources, but also cause vegetation damage, rock mass damage, rock exposure, soil erosion, serious damage to the original landform, serious harm to the ecological landscape, and damage the social and public interests.
The public prosecution agency believes that the defendants Wang Mouyou and Yang Moumou violated the provisions of the Mineral Resources Law and mined without obtaining a mining license. The circumstances were particularly serious and their behavior violated Article 343 of the the People's Republic of China Criminal Law. In the first paragraph, criminal responsibility should be investigated for the crime of illegal mining. At the same time, the public prosecution organ believes that because the defendant's behavior has seriously damaged the ecological environment and damaged the social and public interests, it should bear the civil tort liability according to the relevant provisions of the the People's Republic of China Civil Code. In addition, the public prosecutor also held that the defendant Lu bought the mineral products that were the proceeds of the crime, and the circumstances were serious, and his behavior violated Article 312 of the the People's Republic of China Criminal Law, and should be investigated for the crime of concealing and concealing the proceeds of the crime.
At present, the case is still in the trial stage, Jinan Changqing District People's Court has not yet made a decision.
Legal provisions
The third paragraph of Article 3 of the "the People's Republic of China and Mineral Resources Law" stipulates: "The exploration and mining of mineral resources must be applied for separately in accordance with the law, approved to obtain prospecting rights and mining rights, and registered."
Article 343 of the the People's Republic of China Criminal Law stipulates: "Whoever, in violation of the provisions of the Mineral Resources Law, mines without obtaining a mining license, enters a state-planned mining area, a mining area of great value to the national economy and another person's mining area without authorization, or mines a specific mineral for which the state stipulates protective mining, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and concurrently or a fine. If the circumstances are particularly serious, shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be sentenced to a fine."
Article 1235 of the the People's Republic of China Civil Code stipulates: "If a violation of state regulations causes damage to the ecological environment, the state-prescribed agency or organization prescribed by law has the right to request the infringer to compensate for the following losses and expenses: (1) The loss caused by the loss of service functions during the period from damage to the completion of restoration; the loss caused by permanent damage to the ecological environment function of the (II); (III) the investigation, appraisal and evaluation of ecological environment damage; (IV) the cost of removing pollution and repairing the ecological environment; (V) the reasonable cost of preventing the occurrence and expansion of damage."
According to the above-mentioned legal provisions, the act of mining without obtaining a mining license violates the provisions of Article 343 of the the People's Republic of China Criminal Law and constitutes the crime of illegal mining, which can be sentenced to up to seven years' imprisonment. If unauthorized mining destroys the ecological environment, the illegal miner shall also bear tort liability in accordance with Article 1235 of the the People's Republic of China Civil Code.
Lawyer Advice
1. The exploitation of mineral resources requires the right to exploit. To mine mineral resources, it is necessary to apply for, obtain and register prospecting rights and mining rights separately in accordance with the "Mineral Resources Law" and other legal provisions.
2. Mining of mineral resources shall be subject to license. To achieve licensed mining, mining within the approved and registered mining area, mining within the scope of the approved and registered minerals.
3. Green mining of mineral resources. The exploitation of mineral resources must conform to the concept of green development, in line with the concept of green development and coordinated development, strengthen the protection of the ecological environment, and prohibit mining in nature reserves, scenic spots, national parks, ecological red lines and other areas where mining is prohibited. Avoid administrative penalties and civil liability for failure to meet the EIA standards and bankruptcy of the ecological environment.
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