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Illegal Fishing in the Yangtze River Basin for 9 Times with Prohibited Fishing Gear
[2020-06-05]

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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