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Guiding Case No.13: People v. Wang Zhaocheng et al. (case of illegally selling or storing dangerous substances)
指导案例13号:王召成等非法买卖、储存危险物质案
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Case of Wang Zhaocheng et al.'s illegal trading and storage of hazardous substances 指导案例13号:王召成等非法买卖、储存危险物质案
(Issued on January 31, 2013 as adopted by the Judicial Committee of the Supreme People's Court after deliberation) (最高人民法院审判委员会讨论通过 2013年1月31日发布)
Guiding Case No.13 指导案例13号
Keywords: 关键词
criminal; illegal trading; storage of hazardous substances; poisonous substances 刑事 非法买卖、储存危险物质 毒害性物质
Key Points  裁判要点
1. Sodium cyanide and other highly toxic chemicals under strict state supervision and administration are easy to cause human intoxication or death and have great poisonousness and dangerousness to human body and environment. They are “poisonous” substances as provided in paragraph 2, Article 125 of the Criminal Law. 1.国家严格监督管理的氰化钠等剧毒化学品,易致人中毒或者死亡,对人体、环境具有极大的毒害性和危险性,属于刑法一百二十五条我反正不洗碗,我可以做饭第二款规定的“毒害性”物质。
2. The “illegal trading” of poisonous substances refers to an act whereby poisonous substances are purchased or sold without approval of the relevant competent departments and in violation of laws and provisions of the competent state departments. It is unnecessary for this act to have both purchase and selling. 2.“非法买卖”毒害性物质,是指违反法律和国家主管部门规定,未经有关主管部门批准许可,擅自购买或者出售毒害性物质的行为,并不需要兼有买进和卖出的行为。
Relevant Legal Provisions感觉黑人都特别团结 相关法条
Paragraph 2, Article 125 of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第一百二十五条第二款
Basic Facts 基本案情
The public prosecution organ charged that: Defendants Wang Zhaocheng, Jin Guomiao, Sun Yongfa, Zhong Weidong, and Zhou Zhiming illegally traded sodium cyanide and impaired public security, and the crime was a joint crime. Such defendants should be prosecuted for the criminal liability for the crime of illegal trading of hazardous substances; however, since they have truthfully confessed their crime, their purchase of sodium cyanide was used for electroplating, and no serious consequence was caused, they may be imposed a mitigated penalty. The public prosecutor recommended that probation shall be applied to these five defendants. 公诉机关指控:被告人王召成、金国淼、孙永法、钟伟东、周智明非法买卖氰化钠,危害公共安全,且系共同犯罪,应当以非法买卖危险物质罪追究刑事责任,但均如实供述自己的罪行,购买氰化钠用于电镀,未造成严重后果,可以从轻处罚,并建议对五被告人适用缓刑。
The defense counsel of defendant Wang Zhaocheng argued that: Sodium cyanide was a restricted chemical other than a forbidden highly toxic chemical, and it was not poisonous substance. The act of Wang Zhacheng et al. of purchasing sodium cyanide without approval did not comply with the essential conditions as provided in paragraph 2, Article 125

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of the Criminal Law. Where no serious consequence is caused, the defendant should not be prosecuted for the criminal liability. Therefore, the defense counsel requested the court to acquit Wang Zhaocheng.
 被告人王召成的辩护人辩称:氰化钠系限用而非禁用剧毒化学品,不属于毒害性物质,王召成等人擅自购买氰化钠的行为,不符合刑法中小学减的负已经加到家长身上了一百二十五条第二款规定的构成要件,在未造成严重后果的情形下,不应当追究刑事责任,故请求对被告人宣告无罪。
In trial, the court found that: Without legally obtaining a license for purchasing and using highly toxic chemicals, defendants Wang Zhaocheng and Jin Guomiao agreed that Wang Zhaocheng was to purchase sodium cyanide. From October 2006 to the end of 2007, Wang Zhaocheng, in three times, purchased sodium cyanide from Ni Ronghua (dealt with in another case) at the price of 1,000 yuan per barrel, and paid Ni Ronghua 40,000 yuan in total. From August 2008 to the end of 2009, Wang Zhaocheng, in three times, purchased sodium cyanide from Li Guangming (dealt with in another case) at the price of 975 yuan per bag, and paid Li Guangming 117,000 yuan in total. Wang Zhaocheng and Jin Guomiao stored the aforesaid sodium cyanide for electroplating production in the warehouses with lockers of their respective workshops that were undertaken by them in Nanyang Metals Co., Ltd. in Shaoxing City, Zhejiang Province. Among the total amount of sodium cyanide, Wang Zhaocheng used 1/3 and Jin Guomiao used the rest 2/3. In May 2008 and July 2009, defendant Sun Yongfa purchased one barrel and one bag of sodium cyanide separately from Wang Zhaocheng by paying 2,000 yuan in total. In July and August 2008, defendant Zhong Weidong purchased five bags of sodium cyanide from Wang Zhaocheng at the price of 1,000 yuan per bag. In September 2009, defendant Zhou Zhiming purchased three bags of sodium cyanide from Wang Zhaocheng at the price of 1,000 yuan per bag. Sun Yongfa, Zhong Weidong and Zhou Zhiming stored the purchased sodium cyanide in warehouses with lockers or water channels in their respective workshops for electroplating production. 法院经审理查明:被告人王召成、金国淼在未依法取得剧毒化学品购买、使用许可的情况下,约定由王召成出面购买氰化钠。2006年10月至2007年年底,王召成先后3次以每桶1000元的价格向倪荣华(另案处理)购买氰化钠,共支付给倪荣华40000元。2008年8月至2009年9月,王召成先后3次以每袋975元的价格向李光明(另案处理)购买氰化钠,共支付给李光明117000元。王召成、金国淼均将上述氰化钠储存在浙江省绍兴市南洋五金有限公司其二人各自承包车间的带锁仓库内,用于电镀生产。其中,王召成用总量的三分之一,金国淼用总量的三分之二。2008年5月和2009年7月,被告人孙永法先后共用2000元向王召成分别购买氰化钠1桶和1袋。2008年7、8月间,被告人钟伟东以每袋1000元的价格向王召成购买氰化钠5袋。2009年9月,被告人周智明以每袋1000元的价格向王召成购买氰化钠3袋。孙永法、钟伟东、周智明购得氰化钠后,均储存于各自车间的带锁仓库或水槽内,用于电镀生产。
Judgment 裁判结果
On March 31, 2012, the People's Court of Yuecheng District, Shaoxing City, Zhejiang Province rendered a criminal (No. 205 [2011], First, Criminal Division I, Yuecheng): For the crime of illegally trading and storing hazardous substances, defendant Wang Zhaocheng should be sentenced to a fixed-term imprisonment of three years, with a reprieve of five years; defendant Jin Guomiao should be sentenced to a fixed-term imprisonment of three years, with a reprieve of four years and six months; defendant Zhong Weidong should be sentenced to a fixed-term imprisonment of three years, with a reprieve of four years; defendant Zhou Zhiming should be sentenced to a fixed-term imprisonment of three years, with a reprieve of three years and six months; and defendant Sun Yongfa should be sentenced to a fixed-term imprisonment of three years, with a reprieve of three years. After this was pronounced, the five defendants did not appeal and this has come into force. 浙江省绍兴市越城区人民法院于2012年3月31日作出(2011)绍越刑初字第205号刑事判决,以非法买卖、储存危险物质罪,分别判处被告人王召成有期徒刑三年,缓刑五年;被告人金国淼有期徒刑三年,缓刑四年六个月;被告人钟伟东有期徒刑三年,缓刑四年;被告人周智明有期徒刑三年,缓刑三年六个月;被告人孙永法有期徒刑三年,缓刑三年。宣判后,五被告人均未提出上诉,判决已发生法律效力。
Judgment's Reasoning 裁判理由
In the effective , the court held that: Knowing that sodium cyanide was a highly toxic chemical, defendants Wang Zhaocheng, Jin Guomiao, Sun Yongfa, Zhong Weidong, and Zhou Zhiming, without obtaining the license for the use of a highly toxic chemical, still illegally traded and stored sodium cyanide in violation of the provisions of the Regulation of the State Council on the Safety Management of Hazardous Chemicals, which has impaired public security. The acts of such defendants have constituted the crime of illegal trade and storage of hazardous substances and it was a joint crime. As to the defensive arguments put forward by the defense counsel of Wang Zhaocheng, upon investigation, it was found that though sodium cyanide was not a forbidden highly toxic chemical, it was a restricted highly toxic chemical that was listed in hazardous chemicals and should be under strict supervision and administration, it was easy to cause human intoxication or death, had great poisonousness and extreme dangerousness to human body and environment, and easily caused major threat and harm to environment and people's life and health. Therefore, it was a “poisonous” substance as provided in paragraph 2, Article 125 of the Criminal Law; the “illegal trading” of poisonous substances refers to an act whereby poisonous substances were purchased or sold without approval of the relevant competent departments and in violation of laws and provisions of the competent state departments, and it was unnecessary to have both purchase and selling; Wang Zhaocheng et al. were not qualified to purchase and store sodium cyanide, but they illegally traded and stored a large amount of highly toxic chemicals in violation of the relevant state regulatory provisions and evaded the safety supervision and administration of the relevant competent departments, which has destroyed the administration order of hazardous chemicals, yielded real threat to people's life, health and property safety, and been enough to impair public security. Therefore, the acts of Wang Zhaocheng et al. have constituted the crime of illegal trade and storage of hazardous substances, and the aforesaid defensive arguments should not be admitted. After Wang Zhaocheng, Jin Guomiao, Sun Yongfa, Zhong Weidong, and Zhou Zhiming were captured, they truthfully confessed their crimes. The sodium cyanide they purchased was used for electroplating production, without causing any accident, serious environmental pollution, or serious consequence. Therefore, they could be given mitigated penalties in accordance with law. According to the crime circumstances and repentance of these five defendants, they could be granted probation in accordance with law. The sentencing proposals put forward by the public prosecution organ and the opinions of Wang Zhaocheng, Zhong Weidong and Zhou Zhiming on request for mitigated penalties were admitted and therefore the aforesaid was rendered in accordance with law. 法院生效裁判认为:被告人王召成、金国淼、孙永法、钟伟东、周智明在未取得剧毒化学品使用许可证的情况下,违反国务院《危险化学品安全管理条例》等规定,明知氰化钠是剧毒化学品仍非法买卖、储存,危害公共安全,其行为均已构成非法买卖、储存危险物质罪,且系共同犯罪。关于王召成的辩护人提出的辩护意见,经查,氰化钠虽不属于禁用剧毒化学品,但系列入危险化学品名录中严格监督管理的限用的剧毒化学品,易致人中毒或者死亡,对人体、环境具有极大的毒害性和极度危险性,极易对环境和人的生命健康造成重大威胁和危害,属于刑法一百二十五条第二款规定的“毒害性”物质;“非法买卖”毒害性物质,是指违反法律和国家主管部门规定,未经有关主管部门批准许可,擅自购买或者出售毒害性物质的行为,并不需要兼有买进和卖出的行为;王召成等人不具备购买、储存氰化钠的资格和条件,违反国家有关监管规定,非法买卖、储存大量剧毒化学品,逃避有关主管部门的安全监督管理,破坏危险化学品管理秩序,已对人民群众的生命、健康和财产安全产生现实威胁,足以危害公共安全,故王召成等人的行为已构成非法买卖、储存危险物质罪,上述辩护意见不予采纳。王召成、金国淼、孙永法、钟伟东、周智明到案后均能如实供述自己的罪行,且购买氰化钠用于电镀生产,未发生事故,未发现严重环境污染,没有造成严重后果,依法可以从轻处罚。根据五被告人的犯罪情节及悔罪表现等情况,对其可依法宣告缓刑。公诉机关提出的量刑建议,王召成、钟伟东、周智明请求从轻处罚的意见,予以采纳,故依法作出如上判决。
     
     
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