Court: Such Behavior Constitutes the Crime of Illegally Catching or Killing Precious and Endangered Species of Wildlife under Special State Protection
Defendant
Sentenced to One Year's Imprisonment with a Fine of RMB 5,000 yuan and a
Compensation of RMB 40,000 yuan
On
June 3, 2020, the Chongming District People's Court of Shanghai (hereinafter
referred to as the "Shanghai Chongming Court") held a public hearing
and pronounced a judgment in court on a civil public interest litigation
incidental to criminal proceedings filed by the Shanghai Railway Transport
Procuratorate against Xing for illegally catching and killing precious and
endangered species of wildlife under special State protection.
This
is the first case involving illegal catching and killing of Chinese sturgeon in
the Yangtze River Delta region. On May 14 when this case was accepted by the Shanghai
Chongming Court, China's first local legislation on the protection of specific
species in the Yangtze River Basin, Regulations
of Shanghai Municipality on the Protection of Chinese Sturgeon was formally
adopted.
[Case Review]
On
August 6, 2019, the defendant, Xing, drove a self-purchased fishing boat to the
northern waters of Sheshan Island in Chongming District and without a fishing
permit, used a trawl to catch one suspected live Chinese sturgeon and a number
of spotted silver carps and perches, which were later put in the freezer. The
next morning, fishery law enforcement staff of Chongming District seized these
catches, which had been dead, on Xing's fishing boat and handed them over to
the public security organ for investigation. As identified by Shanghai Wildlife
Identification Center and Academy of Forensic Science, the suspected Chinese sturgeon is actually a Chinese sturgeon under
first-class State protection. Xing's behavior caused the losses of national
wildlife resources totaling RMB 40,000 yuan.
The
public prosecution organ instituting the incidental civil public interest
litigation held that Xing should be held criminally responsible for illegally
catching and killing precious and endangered wildlife under special State
protection. As his behavior destroyed the national wildlife resources and
damaged the public interest, Xing was also requested to compensate for the
losses of national wildlife resources thus incurred totaling RMB 40,000 yuan
and make an apology to the public.
During
the trial, Xing said that as a fisherman, he's willing to accept the punishment
for death of Chinese sturgeon due to his lack of legal awareness and hopes to
be forgiven by the public. The defender argued that Xing was a first and casual
offender who had truthfully confessed to his crime, and
hoped that the court can give a lesser punishment.
[Case Study]
After
the trial, the Shanghai Chongming Court held that the defendant Xing shall be
punished according to law as his behavior of illegally catching Chinese
sturgeon, which is under first-class State protection, constituted the crime of
illegally catching or killing precious and endangered species of wildlife. In
view of his voluntary confession and attitude to punishment, he may be given a
lenient punishment according to law. However, given that his act caused losses
to national wildlife resources and damaged the public interest, he should also
bear the civil liability for infringement according to law. It's legally
justified for the public interest litigation prosecutor to demand Xing to
compensate for the losses of national wildlife resources thus incurred totaling
RMB 40,000 yuan and to make an apology to the public.
After
nearly two hours of trial, the collegial panel handed down the first instance
judgement in court that Xing was sentenced to one year's imprisonment and a
fine of RMB 5,000 yuan for the crime of illegally catching and killing precious
and endangered species of wildlife; Xing should compensate for the losses of
national wildlife resources thus incurred totaling RMB 40,000 yuan and make an
apology to the public.
In
February 2020, the Standing Committee of the National People's Congress made the
Decision to Comprehensively Prohibit the
Illegal Trade of Wild Animals, Break the Bad Habit of Excessive Consumption of
Wild Animals, and Effectively Secure the Life and Health of the People. On
May 14, Shanghai took the lead in promulgating local laws to protect the
Chinese sturgeon. The Civil Code, adopted at the third session of the
Thirteenth National People's Congress on May 28, stipulates the responsibility
for environmental pollution and ecological damage, and clarifies the scope of
compensation for ecological environmental damage. The State is paying more and
more attention to wildlife protection, and the legal system of wildlife
protection is becoming more perfect.
This
is the first case of criminal incidental civil public interest litigation
concerning wildlife protection concluded by the Shanghai Chongming Court. In
this case, the defendant caught and killed the Chinese sturgeon in violation of
the national laws and regulations on wildlife protection, destroyed the national
wildlife resources, and infringed upon the public interest. Holding the
defendant criminally and civilly liable according to law will help to further
deter the illegal catching or killing of precious and endangered species of
wildlife under special State protection, and meanwhile enhance public awareness
of the protection of wildlife and ecological environment.
[Relevant Laws]
I. Criminal Law of the
People's Republic of China
Article
341 Whoever illegally catches or kills precious and endangered species of
wildlife under special State protection or illegally purchases, transports or
sells such species of wildlife as well as the products thereof shall be
sentenced to fixed-term imprisonment of not more than five years or criminal
detention and shall also be fined; if the circumstances are serious, he shall
be sentenced to fixed-term imprisonment of not less than five years but not
more than 10 years and shall also be fined; if the circumstances are especially
serious, he shall be sentenced to fixed-term imprisonment of not less than 10
years and shall also be fined or be sentenced to confiscation of property.
...
Article
67 ...
A
criminal suspect who truthfully confesses to his crime may be given a lighter
penalty although there is no voluntary surrender as mentioned in the preceding
two paragraphs; and may be given a mitigated penalty if any especially serious
consequence is avoided for his truthful confession.
Article
52 The amount of any fine imposed shall be determined according to the
circumstances of the crime.
Article
53 A fine may be paid in a lump sum or in installments within the time limit
specified in the judgment. If a fine is not paid upon the expiration of that
time limit, the payment shall be compelled. If a person is not able to pay the
fine in full, the People's Court shall demand the payment whenever it finds the
person has property for execution of the fine. If a person has true
difficulties in paying because of an irresistible disaster, the fine may be
deferred, reduced or remitted according to the circumstances.
Article
64 All money and property illegally obtained by a criminal shall be recovered,
or compensation shall be ordered; the lawful property of the victim shall be
returned without delay; and contrabands and possessions of the criminal that
are used in the commission of the crime shall be confiscated. All the
confiscated money and property and fines shall be turned over to the State
treasury, and no one may misappropriate or privately dispose of them.
II.
Wild Animal Conservation Law of the People's Republic of China
Article
3 Wild animal resources are owned by the state.
...
III. Property Law of the People's Republic of
China
Article
4 The real rights of the state, collectives, individuals or any other right
holder shall be protected by law and shall not be infringed by any entities or
individuals.
IV. Tort Law of the People's Republic of China
Article
15 The methods of assuming tort liabilities shall include:
...
6.
compensation for losses;
7.
apology; and
...
The
above methods of assuming the tort liability may be adopted individually or
jointly.
V. Interpretation of the Supreme People's Court
on Several Issues Regarding the Application of Law in Environmental Civil
Public Interest Litigation
Article
18 For behavior that pollutes environment and destructs ecosystems, causing
harm to public interest, the people's courts may require the polluters to bear
civil liabilities such as cessation of the infringement, removal of the
obstacles, elimination of the danger, restitution, compensation for losses,
formal apologies, etc.
VI.
Criminal Procedure Law of the People's
Republic of China
Article
15 Where a criminal suspect or defendant voluntarily and truthfully confesses
to his or her crime, admits to the facts of the crime that he or she is charged
with, and is willing to accept punishment, the criminal suspect or defendant
may be granted leniency in accordance with the law.
Regulations of Shanghai Municipality on the Protection of Chinese Sturgeon.docx
(Authors: Zhu Haojie and Yu Siyuan, Shanghai
Chongming Court)