Court: Such Behavior Constitutes the Crime of Illegal Fishing of Aquatic Products Defendants Sentenced to Fixed-term Imprisonment and Compensation for Losses of Fishery Resources Totaling RMB 75,890 Yuan
On June 4, 2020, the Shanghai Railway Transportation Court (hereinafter referred to as the "SRTC") held a public hearing on a case of illegal fishing of aquatic products and incidental civil public interest litigation. The defendant, Han Mouqin[ZYYT1] , was sentenced to nine months' imprisonment for the crime of illegal fishing of aquatic products at the first instance, while another defendant, Han Mouhua, was sentenced to nine months' imprisonment with a suspended sentence of one year. Two defendants shall jointly compensate for the fishery losses totaling RMB 75,890 yuan and make a public apology.
[Case Review]
In
September 5~17, 2019, two defendants and their employees, using dragging
trammel nets with electric pulses, illegally fished for 9 times in Shanghai Changxing water area and Shanghai Jiulong water area of
the Yangtze River, catching more than 1,350 kilograms of spotted silver carps,
more than 70 kilograms of silver carps and more than 500 kilograms of perches
in the Yangtze River. During the ninth illegal fishing, they were seized by the
police on the spot. It was determined that the catches from nine illegal
fishing operations worth RMB 75,890 yuan and the fishing gears used were
prohibited. Hence, the Shanghai Railway Transport Procuratorate
referred the case to the SRTC for the crime of illegal fishing of aquatic
products and meanwhile filed an incidental civil public interest lawsuit,
demanding that two defendants compensate for the losses of fishery resources
totaling RMB 75,890 yuan and apologize to the public.
The
Procuratorate believed that two defendants had planned in advance and, in violation
of the laws and regulations on aquatic resources, used prohibited fishing gears
and methods to catch aquatic products for the sake of illegal gains. The
circumstance is serious and they should be held criminally liable for the crime
of illegal fishing of aquatic products. As they truthfully confessed to their
crime, a lighter penalty may be given. Besides, the two defendants shall bear
the civil tort liability of compensating for the losses and apologizing to the
public according to law since their behavior destroyed the national fishery
resources and damaged the public interest.
[Case Study]
After
the trial, the SRTC held that two defendants' behavior constituted the crime of
illegal fishing of aquatic products, and the indictment of the public
prosecution organ was established. However, the defendants may be given a
lighter penalty according to law as they had truthfully confessed their crimes.
In light of the facts, nature and circumstances of the crime, the court handed
down the above criminal judgment to them for the crime of illegal fishing of
aquatic products. Considering the damage to public interest and harm to the
society thus caused, the claim in incidental civil public interest litigation
was also supported.
Yangtze
River is the cradle of freshwater fishery in China and the treasure house for
fish genes, which plays an important role in the freshwater fishery economy of
China. However, with the destruction of ecological environment in the Yangtze
River Basin, the total amount of fishery resources has fallen sharply, and some
economic fish resources have been depleted. To this end, a comprehensive ban on
fishing is carried out along the main line of Yangtze River from January 1,
2020. Given that two defendants, who have been engaged in fishing for a long
time in this area and know about the national fishery-related environmental
protection policy, still carried out illegal fishing in large quantities and at
a great value, the Procuratorate filed a civil public interest litigation incidental
to the criminal proceedings, requesting two defendants, who should be held
criminally liable according to law, bear corresponding civil liability like
compensating for the losses of national fishery resources caused by their
illegal fishing of aquatic products and apologizing to the public. The hearing
of this case is of vital importance to the protection of ecological environment
in the Yangtze River Basin since it can effectively deter illegal fishing and
enhance the public awareness of environmental resources protection and their
consciousness of rule of law.
[Relevant Laws]
I. Criminal Law of the
People's Republic of China
Article
340 Whoever, in violation of the law or regulations on protection of aquatic
resources, catches aquatic products in an area or during a season closed to
fishing, or uses prohibited fishing gear or methods for the purpose, if the
circumstances are serious, shall be sentenced to fixed-term imprisonment of not
more than three years, criminal detention or public surveillance or be fined.
Paragraph
1, Article 25 A joint crime refers to an intentional crime committed by two or
more persons jointly...
Paragraph
3, 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.
Paragraph
1, Article 72 Where a convict sentenced to criminal detention or imprisonment
of not more than 3 years meets the following conditions, probation may be
announced, and probation shall be announced if he is under the age of 18, is
pregnant or attains the age of 75:
(1)
The circumstances of the crime are minor;
(2)
He shows repentance;
(3)
He is not likely to commit any offense again; and
(4)
Announcing the probation will not have any major adverse impact on the
community where he lives.
...
Paragraph
2, Article 73 The probation period for suspension of fixed-term imprisonment
shall be not less than the term originally decided and not more than five years,
minimally one year.
Paragraph
3, Article 73 The probation period for suspension of sentence shall be counted
from the date the judgment is made final.
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.
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.
III.
Tort Law of the People's Republic of China
Paragraph
1, Article 6 One who is at fault for infringement upon a civil right or
interest of another person shall be subject to the tort liability.
Article
8 Where two or more persons jointly commit a tort, causing harm to another
person, they shall be liable jointly and severally.
Items
(6) & (7), Paragraph 1 and Paragraph 2, 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.
(Author: Tao
Tao, Shanghai
Railway Transportation Court)
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