Research on Identifying Criminal Object and Approved Value Standard in Criminal Cases of Destruction of Wildlife Resources
Published:
2018-07-18
Keywords: Destruction of wildlife resources identified object value approved sentencing standards
Since my country joined the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), judicial organs have continuously strengthened the investigation and handling of criminal cases involving destruction of wildlife resources. The proportion of such cases involving rhino horn and its products, ivory and its products is extremely high. At present, there are many problems such as inconsistent identification of criminal objects, unreasonable value verification standards, and uneven sentencing.
In 1. criminal cases involving rhino horn and its products, ivory and its products, the identification of the criminal object is not uniform.
For the identification of rhino horn and its products, ivory and its products, the current use of "species" identification, that is, to identify whether the various physical properties of the criminal object are in line with the physical properties of rhino horn and ivory. The precious attributes of the object of the crime, that is, whether it has the protection of the law, do not identify. The single use of "species" as the only identification standard, ignoring the reason why rhino horn and ivory are protected by law, is completely focused on objective standards and ignoring subjective standards. There are mainly the following problems:
1, serious violations of the provisions of the criminal law of the crime and the principle of crime and punishment. Because the "rhinoceros horn fragments" or "ivory fragments" involved in some cases are quite different from the prescribed rhinoceros horn and ivory pieces, if the approved value according to the existing regulations is obviously unreasonable and unfair.
2. It seriously deviates from the purpose of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the original intention of China's accession to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
In the first criminal case of smuggling ivory and its products in Shanxi Province, where the author served as the defender, it appeared that the appraisal agency only conducted a "species" appraisal of the smuggled ivory products involved in the case, causing the court of first instance to include part of the "ivory fragments" involved in the case. "Included within the scope of criminal law punishment. Although the case was revised by the Shanxi Provincial higher people's Court, due to the lack of laws and regulations on the identification of the precious attributes of ivory and its products, the Shanxi Provincial higher people's Court can only change the sentence by reporting to the Supreme people's Court in the "special case" way of sentencing below the statutory penalty.
In 2. criminal cases involving rhino horn and its products, ivory and its products, the criteria for value verification are unreasonable.
At present, the value of wild animals and their products is determined according to a certain multiple and proportion of the resource protection fee of the wild animal, and the determination of the resource protection fee is based on the cost of the state to protect the animal. The "Terrestrial Wildlife Resources Protection Management Fee Measures" was promulgated in 1992. Compared with the current modern and efficient protection measures, it is obviously not suitable for the current situation. According to the current value approval standards, most of the results are far higher than the market price, purchase price and other reference values.
The State Forestry Administration issued respectively Lin Hufa [2002] No. 130 "Notice of the State Forestry Administration on Issuing the Value Standards of Rhino Horn Involved in Criminal Cases of Destroying Wildlife Resources" and Lin Liangfa [2001] No. 234 "Notice of the State Forestry Administration on Issuing the Value Standards of Smuggled Ivory and Its Products Involved in Criminal Cases of Destroying Wildlife Resources" (referred to as "Two Notifications"), and the "Notice of the Supreme People's Court, the Supreme People's Procuratorate, the State Forestry Administration, the Ministry of Public Security, and the General Administration of Customs on the Verification of the Value of Terrestrial Wildlife Products Listed in Appendix I and Appendix II of CITES Involved in Criminal Cases of Destroying Wildlife Resources" (referred to as the "Five Departments" Notice ") only stipulates the value standard from two aspects of weight and the whole root, which is simple and adopts a" one size fits all "one size fits all.
Unbalanced sentencing in 3. criminal cases involving rhino horn and its products, ivory and its products
At present, in judicial practice, some criminal cases involving rhinoceros horn and its products, ivory and its products are dealt with lightly, while others are dealt with strictly in accordance with the current regulations. The sentencing is extremely uneven and cannot be unified. The reason is that the sentencing idea of value standard is difficult to fit the original intention of frequent species protection work, and the sentencing idea of judging the social harmfulness of behavior by value is not universal.
Finally, the author believes that the relevant laws and regulations and judicial interpretations should be further improved. In the "Two Notices", "Five Departmental Notices" and "The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destroying Wildlife Resources" The identification of the "species" and "precious attributes" of the criminal object should be clearly defined, and the value verification standards should be modified, so that the above problems can be standardized and solved.
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