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| Ten Model Criminal, Civil, and Administrative Cases concerning Environmental Resources Punished by the Supreme People's Court | | 最高人民法院发布10起环境资源刑事、民事、行政典型案例 |
| (June 22, 2017) | | （2017年6月22日） |
| Table of Contents | | 目 录 |
| 1. People's Procuratorate of Shapotou District, Zhongwei City, Ningxia Hui Autonomous Region v. Ningxia Mingsheng Dye Chemicals Co., Ltd. and Lian Xingzhong (Case concerning Environmental Pollution) | | 1.宁夏回族自治区中卫市沙坡头区人民检察院诉宁夏明盛染化有限公司、廉兴中污染环境案 |
| 2. People's Procuratorate of Lianyun District, Lianyungang City v. Yin Baoshan et al. (Civil action incidental to criminal proceedings concerning illegal fishing of aquatic products) | | 2.连云港市连云区人民检察院诉尹宝山等人非法捕捞水产品刑事附带民事诉讼案 |
| 3. People's Procuratorate of Yueyanglou District, Yueyang City, Hunan Province v. He Jianqiang et al. (Civil action incidental to criminal proceedings concerning crime of illegal killing of rare and endangered wildlife and crime of illegal hunting) | | 3.湖南省岳阳楼区人民检察院诉何建强等非法杀害珍贵、濒危野生动物罪、非法狩猎罪刑事附带民事诉讼案 |
| 4. Lv Jinkui and Other 78 Persons v. Shanhaiguan Shipbuilding Industry Co., Ltd. (Case concerning dispute over liability for marine pollution damages) | | 4.吕金奎等79人诉山海关船舶重工有限责任公司海上污染损害责任纠纷案 |
| 5. Ni Xulong v. Dandong Haiyanghong Wind Power Generation Co., Ltd. (Case concerning dispute over tort of environmental pollution) | | 5.倪旭龙诉丹东海洋红风力发电有限责任公司环境污染侵权纠纷案 |
| 6. Jiangxi Xingguang Modern Ecological Agricultural Development Co., Ltd. v. Jiangxi Yingpeng Chemicals Co., Ltd. (Case concerning dispute over air pollution liability) | | 6.江西星光现代生态农业发展有限公司诉江西鹰鹏化工有限公司大气污染责任纠纷案 |
| 7. All-China Environment Federation v. Tan Yaohong and Fang Yunshuang (Civil public interest litigation concerning environmental pollution) | | 7.中华环保联合会诉谭耀洪、方运双环境污染民事公益诉讼案 |
| 8. Deng Shiying v. Guangxi Yongkai Sweet Wrappers Co., Ltd. and Other Five Enterprises (Case concerning dispute over liability for damages caused by pollution in waters to the sea) | | 8.邓仕迎诉广西永凯糖纸有限责任公司等六企业通海水域污染损害责任纠纷案 |
| 9. Hainan Sound Water Co., Ltd. V. Ecological Environmental Protection Bureau of Danzhou City, Hainan Province (Case concerning an environmental protection-related administrative penalty) | | 9.海南桑德水务有限公司诉海南省儋州市生态环境保护局环保行政处罚案 |
| 10. Chen Delong v. Environmental Protection Bureau of Chenghua District, Chengdu City (Case concerning an environmental protection-related administrative penalty) | | 10.陈德龙诉成都市成华区环境保护局环保行政处罚案 |
| Case No. 1 | | 案例一 |
| People's Procuratorate of Shapotou District, Zhongwei City, Ningxia Hui Autonomous Region v. Ningxia Mingsheng Dye Chemicals Co., Ltd. and Lian Xingzhong (Case concerning environmental pollution) | | 宁夏回族自治区中卫市沙坡头区人民检察院诉宁夏明盛染化有限公司、廉兴中污染环境案 |
| [Basic Facts] | | 【基本案情】 |
| From 2007, under the circumstances where sewage treatment measures did not pass the environmental impact assessment (EIA) and were not registered and accepted, Ningxia Mingsheng Dye Chemicals Co., Ltd. (hereinafter referred to as “Mingsheng Company”) disposed of industrial sewage by using the “lime neutralization process” in Tengger Desert in the east of the factory. On June 18, 2009, Lian Xingzhong served as the legal representative of Mingsheng Company, took charge of the overall work of the Company, and decided to continuously dispose of industrial sewage by using the “lime neutralization process.” On May 11, 2011, Mingsheng Company obtained the pollutant discharge license, effective to April 30, 2014. After the expiration of the pollutant discharge license, Mingsheng Company continued the illegal discharge. Up to September 2014 when Mingsheng Company was ordered to shut down and cease production, there was a large volume of industrial sewage in seepage pits in Tengger Desert in the east of the factory. Upon testing of sampled sewage on the scene by the Environmental Monitoring Center of Ningxia Hui Autonomous Region, it was identified that multiple monitoring factors in the sewage exceeded the prescribed national discharge standards. After the case was exposed, Mingsheng Company and Lian Xingzhong wasted no time in adopting measures to eliminate pollution. Mingsheng Company paid CNY626,640, which was the expense arising from the adoption of necessary measures. | | 2007年以来，明盛公司在废水处理措施未经环境影响评估，未经申报登记、验收的情况下，擅自在厂区外东侧腾格里沙漠采用“石灰中和法”处置工业废水。2009年6月18日，廉兴中任明盛公司法定代表人，负责公司的全面工作并决定继续使用“石灰中和法”处置工业废水。明盛公司于2011年5月11日取得排放污染物许可证，有限期限至2014年4月30日。明盛公司在排放污染物许可证到期后，仍继续非法排污。至2014年9月被责令关闭停产时，该公司厂区外东侧腾格里沙漠渗坑内存有大量工业废水。经宁夏环境监测中心站对现场废水取样检测认定，废水中多项监测因子超过国家排放标准。案发后，明盛公司、廉兴中为防止污染扩大，及时采取措施，消除污染。明盛公司支付因采取合理必要措施所产生的费用626640元。 |
| [Adjudication] | | 【裁判结果】 |
| In the trial of first instance, the People's Court of Shapotou District, Zhongwei City, Ningxia Hui Autonomous Region held that: In violation of the relevant state provisions on environmental protection, Mingsheng Company illegally discharged and disposed of toxic substances, which seriously polluted the environment. As the directly responsible executive of the defendant entity, Lian Xingzhong was directly responsible for the environmental pollution. The acts of both Mingsheng Company and Lian Xingzhong have violated criminal laws and constituted a crime of environmental pollution. The charge of the public prosecution organ was tenable and should be upheld. After being arrested, Lian Xingzhong truthfully confessed to his crime and he may be given a lighter punishment; after the case was exposed, Mingsheng Company and Lian Xingzhong wasted no time in adopting measures to eliminate pollution and may be given a lenient punishment depending on the actual circumstances. For Mingsheng Company's long duration of pollutant discharge, continuous illegal discharge of pollutants after the expiration of the pollutant discharge license, and serious environmental pollution caused thereby, the People's Court of Shapotou District decided to impose a fine of CNY5 million on Mingsheng Company in light of its specific criminal facts. According to the facts, nature, circumstances, and social harms of the crime committed by Lian Xingzhong, probation may be imposed and community correction may be conducted according to the law. The court of first instance imposed a fine of CNY5 million on Mingsheng Company for committing the crime of environmental pollution; and sentenced Lian Xingzhong to a fixed-term imprisonment of one year and six months with a two years' probation, in addition to a fine of CNY50,000 for committing the crime of environmental pollution. | | 宁夏回族自治区中卫市沙坡头区人民法院一审认为，明盛公司违反国家有关环境保护的规定，非法排放、处置有毒物质，严重污染环境，廉兴中系被告单位直接负责的主管人员，对污染环境的行为负有直接责任，明盛公司和廉兴中的行为均已触犯刑律，构成污染环境罪。公诉机关的指控成立，予以支持。廉兴中归案后，能如实供述自己的犯罪事实，可以从轻处罚；案发后，明盛公司、廉兴中及时采取措施，消除污染，可以酌情从宽处罚。明盛公司排污时间相对较长，且在排放污染物许可证到期后，仍非法排污，严重污染环境，结合明盛公司的具体犯罪事实，决定对其判处罚金人民币五百万元。根据廉兴中的犯罪事实、性质、情节和对社会的危害程度，对廉兴中可以适用缓刑，依法实行社区矫正。一审法院判决明盛公司犯污染环境罪，判处罚金人民币五百万元；廉兴中犯污染环境罪，判处有期徒刑一年六个月，缓刑二年，并处罚金人民币五万元。 |
| [Significance] | | 【典型意义】 |
| This is the first criminal case concerning environment pollution adjudged after the occurrence of the pollution incident of Tengger Desert. The environment is a key factor for sound social development and also an important legal interest protected by the Criminal Law. The people's court trying this case has properly applied the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Cases concerning Environmental Pollution, legally punished such criminal activities as discharge and dumping of toxic and hazardous wastes by privately setting up underground pipelines and serious pollution of the ecological environment of Tengger Desert, fully implemented the criminal policy of combining punishment with leniency, and legally safeguarded the public interests and the environmental rights and interests of the people. The trial of this case has sounded alarms for proper handling of relationship between economic development and environmental protection and warned governments in how to choose when there are conflicts between economic development and environmental protection and between current interests and long-term interests. The trial and adjudication of this case plays a good promoting and exemplary role in educating and promoting enterprises to legally engage in production, improving clean production techniques and discharge control technologies by relying on technologies, and realizing green development. | | 本案系腾格里沙漠污染事件发生后首例宣判的环境污染刑事案件。环境是社会健康发展的重要因素，也是刑法保护的重要法益。本案审理法院正确适用《最高人民法院 最高人民检察院关于办理环境污染刑事案件适用法律若干问题的解释》，依法惩治私设暗管排放、倾倒有毒、有害废物，严重污染腾格里沙漠生态环境的犯罪行为，充分贯彻宽严相济的刑事政策，依法保障社会公共利益和人民群众环境权益。该案的审理也为正确处理经济发展与环境保护之间的关系敲响了警钟，警醒政府在发展经济与保护环境、当前利益和长远利益等问题发生矛盾时应当如何取舍。该案的审理和判决对于教育和促进企业依法生产，依托科技手段提升清洁生产工艺和排放控制技术，实现绿色发展具有较好推动和示范作用。 |
| [Commentator]Zhu Xiao, professor of Renmin University of China | | 【点评专家】竺效，中国人民大学教授 |
| [Comments] | | 【点评意见】 |
| The highlight of this case is the “dual-punishment mechanism” adopted by the people's court. In other words, a fine of CNY5 million was imposed on the enterprise involved, Mingsheng Company, , which “made it lose more than gain” economically and dare not to recommit the crime. It has better deterred potential similar parties that fail to handle EIA formalities, discharge pollutants by exceeding the prescribed standards, discharge pollutants without a pollutant discharge license, discharge pollutants by “exceeding the scope as specified on the license,” or secret discharge of pollutants. In the meantime, the people's court sentenced Lian Xingzhong who was the legal representative of the enterprise involved and the directly responsible executive in charge of pollution to a fixed-term imprisonment of one year and six months, in addition to a fine of CNY50,000. The legal representatives of polluting enterprises who take chances should take this case as a lesson, always stay vigilant of environmental protection, have the law-abiding awareness, operate according to the law, protect the environment, and avoid the “loss of both liberty and property” after being put into prison for the crime committed thereby. | | 本案最大的亮点在于法院采用了“双罚制”，即对涉案企业宁夏明盛染化有限公司判处刑事罚金500万元，让涉案企业在经济上“得不偿失”，今后不敢再犯，较好地威慑了那些不依法办理环评手续、超标排污、无排污许可证排污或“超（许可）证”排污、偷排污染物的潜在的类似环境污染危害行为人。同时，法院对涉案企业的法定代表人、污染行为直接负责的企业主管人员廉兴中，判处有期徒刑1年6个月，并处罚金5万元。那些心存侥幸的污染企业的法定代表人应该以此为戒，环保警钟时时敲响，环境守法谨记于心，依法经营，保护环境，避免犯罪入狱“自由和财产两失”。 |
| In addition, in light of such specific circumstances where, after the case was exposed, Mingsheng Company and Lian Xingzhong wasted no time in adopting measures, paid the expense of CNY626,640 for the adoption of reasonable and necessary environmental disposal measures, and actively eliminated the adverse effects on the environment caused by the pollution, the people's court gave a probation to Lian Xingzhong, legal representative of the enterprise. In other words, Lian Xingzhong was sentenced to a fixed-term imprisonment of one year and six months with a two years' probation and he was subject to community correction according to the law. The consequences of environmental damages are usually irreversible. In this case, the practice of the people's court has good demonstration effects in guiding similar actors of environmental damage in actively preventing the occurrence or expansion of environmental damage consequences, restore the damaged ecology, or resume the polluted environment after cases are exposed. | | 此外，该案也结合案发后明盛公司、廉兴中及时采取措施，支付因采取合理必要的环境处置措施所产生的费用626640元，以积极消除污染行为对环境的不利影响等具体案件情节，对企业法定代表人廉兴中适用了缓刑，即判处有期徒刑1年6个月，缓刑2年，并依法对其实行社区矫正。环境损害后果往往具有不可逆性，该案中，法院的这一做法对于引导类似环境危害行为人在案发后积极预防环境危害后果的发生或扩大，修复被破坏的生态或恢复被污染的环境，具有良好的示范效果。 |
| Case No. 2 | | 案例二： |
| People's Procuratorate of Lianyun District, Lianyungang City v. Yin Baoshan et al. (Civil action incidental to a criminal proceedings concerning illegal fishing of aquatic products) | | 江苏省连云港市连云区人民检察院诉尹宝山等人非法捕捞水产品刑事附带民事诉讼案 |
| [Basic Facts] | | 【基本案情】 |
| From the beginning of June to July 30, 2012, Yin Baoshan called Li Zhiyou, Qin Jun, Qin Botao, Li Mingming, and Qin Xinbo together to go fishing on the sea in violation of regulations in the summer fishing moratorium season and the marine products caught were all purchased by Yin Baoshan. Up to July 30, 2012, Yin Baoshan has purchased aquatic products with the value of CNY828,784 caught by the aforesaid five persons. The People's Procuratorate of Lianyun District, Lianyungang City instituted a public prosecution in the People's Court of Lianyun District, Lianyungang City on the ground that the aforesaid six persons committed a crime of illegal fishing of aquatic products. In the meantime, according to the restoration scheme issued by the relevant functional department, the People's Procuratorate of Lianyun District filed a civil action incidental to criminal proceedings and required the six persons to restore the marine ecological environment damaged by their criminal activities in a certain way. | | 2012年6月初至7月30日，尹宝山召集李至友、秦军、秦波涛、李明明、秦新波等人，在伏季休渔期间违规出海作业捕捞海产品，捕捞的海产品全部由尹宝山收购。至2012年7月30日，尹宝山收购上述另五人捕捞的水产品价值828784元人民币。连云港市连云区人民检察院以上述六人犯非法捕捞水产品罪向连云港市连云区人民法院提起公诉，同时根据相关职能部门出具的修复方案，提起刑事附带民事诉讼，要求六人采取一定方式修复被其犯罪行为破坏的海洋生态环境。 |
| [Adjudication] | | 【裁判结果】 |
| In the trial of first instance, the People's Court of Lianyun District, Lianyungang City, Jiangsu Province held that: Yin Baoshan called Li Zhiyou, Qin Jun, Qin Botao, Li Mingming, and Qin Xinbo together to illegally fish aquatic products in closed fishing areas in the closed fishing season in violation of regulations on the protection of aquatic resources. With serious circumstances, the acts of the six persons have constituted a crime of illegal fishing of aquatic products. The six persons voluntarily returned some illegal gains, showed repentance, voluntarily paid the earnest money for restoration of the marine ecological environment, and consented to restore the marine ecological environment damaged by their criminal activities with practical action. In sentencing, they may be given lighter punishments depending on the actual circumstances. The six persons' criminal activities of illegally fishing marine products in closed fishing areas in the closed fishing season affected the breeding of marine organisms and caused serious damage to marine fishery resources. In order to protect the national marine fishery resources and improve the marine ecological environment damaged by the criminal activities of the six persons, the six persons should adopt scientific and reasonable measures to restore the damaged ecological environment in accordance with the provisions of the Tort Law of the People's Republic of China. According to the restoration opinions issued by a specialized institution, the multiplication and release of Chinese prawn seedlings may effectively restore the damaged marine ecological environment. Therefore, the people's court separately sentenced the six persons to fixed-term imprisonments ranging from one year to two years and three months, to some of whom probation and confiscation of all illegal gains were applicable. In the meantime, the people's court ordered the six persons to restore the marine ecological environment damaged by their criminal activities by multiplication and release of 13.65 million Chinese prawn seedlings. After the judgment of first instance was rendered, on the ground that sentencing in the judgment was heavy, Yin Baoshan appealed to the Intermediate People's Court of Lianyungang City, Jiangsu Province. Upon trial, the Intermediate People's Court of Lianyungang City ruled to dismiss the appeal and affirm the original judgment. | | 江苏省连云港市连云区人民法院一审认为，尹宝山召集李至友、秦军、秦波涛、李明明、秦新波等人违反保护水产资源法规，在禁渔期、禁渔区非法捕捞水产品，情节严重，六人的行为均已构成非法捕捞水产品罪。六人主动退缴部分违法所得，确有悔罪表现，还主动交纳了海洋生态环境修复保证金，同意以实际行动修复被其犯罪行为损害的海洋生态环境，量刑时可酌情从轻处罚。六人在禁渔期、禁渔区非法捕捞海产品的犯罪行为，影响海洋生物休养繁殖，给海洋渔业资源造成严重破坏。为了保护国家海洋渔业资源，改善被六人犯罪行为破坏的海洋生态环境，六人应当根据《中华人民共和国侵权责任法》的规定，采取科学、合理的方式予以修复。根据专业机构出具的修复意见，采取增殖放流的方式，放流中国对虾苗可以有效的进行修复。遂对六人分别判处一年至二年三个月不等的有期徒刑，部分适用缓刑，没收全部违法所得。同时判决六人以增殖放流1365万尾中国对虾苗的方式修复被其犯罪行为破坏的海洋生态环境。一审判决作出后，尹宝山以一审量刑过重为由，上诉至江苏省连云港市中级人民法院，该院经审理后裁定驳回上诉，维持原判。 |
| [Significance] | | 【典型意义】 |
| This is the first civil action incidental to criminal proceedings concerning environmental resources instituted by the procuratorial organ in Jiangsu Province. The explorations and innovations in the trial and enforcement of this case have good reference value in the trial of cases concerning environmental resources. After legally accepting the civil case incidental to criminal proceedings instituted by the procuratorial organ, the court of first instance found the case facts, fully solicited opinions of all defendants on the restoration scheme, made the ecological restoration scheme known to the public, and extensively solicited opinions from the public. After summarizing and examining the public opinions, the court of first instance confirmed the scientificity and rationality of the restoration scheme issued by the relevant functional department where Chinese prawn seedlings were multiplied and released according to the output ratio of 1:10. In this way, a new mechanism where the public participate in environmental justice has been formed. This case is of good demonstration significance in implementing the concept of restorative justice in the trial of cases concerning damage to the marine ecological environment and guiding the public in participating in trials. | | 本案系江苏省首例由检察机关提起刑事附带民事诉讼的环境资源刑事案件。该案在审判及执行方式上的探索创新，对环境资源案件审理具有较好的借鉴价值。一审法院在依法受理检察机关提起的刑事附带民事起诉后，查明案件事实并充分听取了各被告对修复方案的意见，将生态修复方案向社会公开，广泛征求公众的意见，在汇总、审查社会公众意见后，确认了相关职能部门出具的根据产出比1：10增殖放流中国对虾苗的修复方案的科学性、合理性，开创了引导社会公众参与环境司法的新机制。本案对环境资源审判贯彻恢复性司法理念审理海洋生态环境破坏案件，引导社会公众参与审判具有较好的示范意义。 |
| [Commentator]Luo Li, professor of Beijing Institute of Technology | | 【点评专家】罗丽，北京理工大学教授 |
| [Comments] | | 【点评意见】 |
| This is a civil action incidental to criminal proceedings instituted by a procuratorial organ when it instituted a public prosecution for investigation of criminal liabilities of criminal offenders who committed a crime of illegal fishing of aquatic products. The typical significance of this case lies in the following aspects: First, this case has given full play to functions of the system of civil actions incidental to criminal proceedings in safeguarding public environmental interests. The fundamental purpose of the establishment of the system of civil actions incidental to criminal proceedings in China is to realize the objectives of criminal policies for serving prevention and control of crimes and relief to victims through the integration of civil compensation and criminal sanctions. In accordance with China's current legislative provisions, when the criminal liabilities of a criminal offender that commits a crime of damaging the protection of environmental resources, by instituted a civil action incidental to criminal proceedings, the procuratorial organ can effectively realize the purpose of protecting state property, collective property, and other public ecological environmental interests. Therefore, for cases where the acts of criminal suspects constitute a crime of damaging the protection of environmental resources, apart from instituting a public prosecution for investigation of actors' criminal liability, the procuratorial organ should safeguard state property, collective property, and other public ecological environmental interests by instituting a civil action incidental to criminal proceedings. For example, in this case, by instituting a civil action incidental to criminal proceedings, the procuratorial organ requested the people's court to order that the six defendants should restore the marine ecological environment damaged by their criminal activities or compensate the ecological environment restoration expense of CNY81,900 and such request was upheld by the people's court. Finally, the people's court rendered a judgment that the six defendants should restore the marine ecological environment damaged by them by means of multiplying and releasing 13.65 Chinese prawn seedlings, in which way, the public interests of protecting the marine ecological environment were safeguarded. Second, the mechanism of information disclosure and public participation is introduced into the trial and enforcement, which is conducive to the preparation of a scientific and rational ecological restoration scheme. Since the investigation into damage to the ecological environment, appraisal, preparation of a restoration scheme, and other work involve the public ecological environmental interests, in the process of trial and enforcement, the people's court should make the relevant major matters known to the public, implemented the mechanism of public participation in public supervision, which is conducive to the preparation of a scientific and rational scheme for restoration of the ecological environment. In this case, the people's court fully solicited opinions from all defendants on the restoration scheme and made the ecological restoration scheme known to the public by means of local news media and official MicroBlog and WeChat accounts of the people's court, so as to extensively solicit public opinions. This innovative manner in which the public were guided in participating in the democratic and scientific decision-making in the process of judicial adjudication of compensation for ecological environmental damages has active reference value. | | 本案是由检察机关在提起公诉追究犯罪行为人非法捕捞水产品罪刑事责任时提起的附带民事诉讼案件。本案的典型意义在于：第一，本案充分发挥了刑事附带民事诉讼制度在维护环境公共利益方面的功能。我国设立刑事附带民事诉讼制度的主要目的在于，通过使民事赔偿与刑事制裁一体化，实现服务于预防与控制犯罪、救济被害人的刑事政策目标。根据我国现行立法规定，在追究破坏环境资源保护罪犯罪行为人刑事责任时，检察机关通过提起刑事附带民事诉讼，能够有效实现保护国家财产、集体财产等生态环境公共利益之目的。因此，针对犯罪嫌疑人构成破坏环境资源保护罪的案件，检察机关除提起公诉追究行为人刑事责任外，还应通过提起刑事附带民事诉讼途径维护国家财产、集体财产等生态环境公共利益。例如，在本案中，检察机关通过提起附带民事诉讼请求依法判令六名被告人修复被其犯罪行为损害的海洋生态环境或赔偿生态环境修复费用81900元的请求得到了法院支持，法院最终判决六名被告以增殖放流中国对虾苗1365万尾的方式修复被其破坏的海洋生态环境，实现了维护海洋生态环境公共利益之目的。第二，本案在审判和执行方式方面引入了信息公开和公众参与机制，有利于制定科学、合理的生态修复方案。由于生态环境损害调查、鉴定评估、修复方案编制等工作会涉及到生态环境公共利益，法院在审判和执行过程中对相关重大事项向社会公开，并推行公众参与机制，便于公众监督，有利于制定科学、合理的生态环境修复方案。如在本案中，人民法院充分听取了各被告对修复方案的意见，并将生态修复方案通过地方新闻媒体、法院官方微博、微信公众号等方式向社会公开，广泛征求公众的意见。这种在生态环境损害赔偿司法裁判过程中引导社会公众参与民主科学决策的创新方式，具有积极的借鉴价值。 |
| Case No. 3 | | 案例三： |
| People's Procuratorate of Yueyanglou District, Yueyang City, Hunan Province v. He Jianqiang et al. (Civil action incidental to criminal proceedings concerning crime of illegal killing of rare and endangered wildlife and crime of illegal hunting) | | 湖南省岳阳楼区人民检察院诉何建强等非法杀害珍贵、濒危野生动物罪、非法狩猎罪刑事附带民事诉讼案 |
| [Basic Facts] | | 【基本案情】 |
| From November 2014 to January 2015, when collecting fishes in the Dongtinghu National Nature Reserve in Hunan Province, He Jianqiang and Zhong Dejun came to an agreement on killing wild migratory birds by poisoning with fish farmers and their helpers including Fang Jianhua, Long Xueru, Long Qiming, Tu Shengbao, Yu Liuqiu, Zhang Lianhai, and Ren Xiaoping, and He Jianqiang provided pesticides and took charge of purchasing such wild migratory birds. Afterwards, He Jianqiang and other persons repeatedly killed wild migratory birds in the nature reserve by poisoning. Such wild migratory birds were uniformly purchased by He Jianqiang and sold to Wang Qianping under the agency of Li Qiang. He Jianqiang and Zhong Dejun successively purchased a total of 63 migratory birds in eight bags from Fang Jianhua and Yu Liuqiu and such migratory birds were seized by staff members of the nature reserve administration in the Haoba Wharf located in Junshan District, Yueyang City on January 18, 2015. It was identified that the aforesaid 63 migratory birds died of poisoning. In particular, 12 cygnets and five white spoonbills were wild animals under state protection (Category II); there were grey herons, tadorna ferrugineas, eurasian wigeons, anas poecilorhynchas, and night herons, 46 in total, which were all beneficial wild animals with important economic and scientific research value under state protection. It was verified that the 63 wild migratory birds seized had a value of CNY44,617. | | 2014年11月至2015年1月期间，何建强、钟德军在湖南省东洞庭湖国家级自然保护区收鱼时，与养鱼户及帮工人员方建华、龙雪如、龙启明和涂胜保、余六秋、张连海、任小平等人商定投毒杀害保护区内野生候鸟，由何建强提供农药并负责收购。此后，何建强等人先后多次在保护区内投毒杀害野生候鸟，均由何建强统一收购后贩卖给李强介绍的汪前平。2015年1月18日，何建强、钟德军先后从方建华及余六秋处收购了8袋共计63只候鸟，在岳阳市君山区壕坝码头被自然保护区管理局工作人员当场查获。经鉴定，上述63只候鸟均系中毒死亡；其中 12只小天鹅及5只白琵鹭均属国家二级保护野生动物；其余苍鹭、赤麻鸭、赤颈鸭、斑嘴鸭、夜鹭等共计46只，均属国家“三有”保护野生动物。查获的63只野生候鸟核定价值为人民币44617元。 |
| The People's Procuratorate of Yueyanglou District, Hunan Province instituted a public prosecution in the People's Court of Yueyanglou District, Yueyang City on the ground that He Jianqiang and other six persons committed a crime of illegal hunting and killing of rare and endangered wildlife. The Forestry Bureau of Yueyang City instituted a civil action incidental to criminal proceedings and requested that the seven defendants should jointly compensate for losses of CNY53,553. The People's Procuratorate of Yueyanglou District supported the action instituted by the Forestry Bureau of Yueyang City. | | 湖南省岳阳楼区人民检察院以何建强等七人犯非法猎捕、杀害珍贵濒危野生动物罪，向岳阳市岳阳楼区人民法院提起公诉。岳阳市林业局提起刑事附带民事诉讼，请求七名被告人共同赔偿损失53553元，湖南省岳阳楼区人民检察院支持起诉。 |
| [Adjudication] | | 【裁判结果】 |
| In the trial of first instance, the People's Court of Yueyanglou District, Yueyang City, Hunan Province held that: In collusion with Zhong Dejun and Fang Jianhua, He Jianqiang illegally killed cygnets, white spoonbills, and other wild animals under state protection (Category II) by poisoning in the Dongtinghu National Nature Reserve in Hunan Province; Li Qiang assisted He Jianqiang in purchasing pesticides and was fully responsible for selling the wild migratory birds killed by poisoning. The acts of He Jianqiang, Zhong Dejun, Fang Jianhua, and Li Qiang have constituted a crime of illegal killing of rare and endangered wildlife and the circumstances were particularly serious. Incited by He Jianqiang, Long Xueru, Long Qiming, and Long Zhen separately hunted and killed wild migratory birds in the national nature reserve, which damaged wildlife resources. With serious circumstances, their acts have constituted a crime of illegal hunting. In the meantime, the criminal acts of He Jianqiang and Zhong Dejun constituted a crime of illegal killing of rare and endangered wildlife and a crime of illegal hunting . They should be convicted and punished according to a heavier crime, namely, the crime of illegal killing of rare and endangered wildlife. In addition, since the criminal acts of He Jianqiang and other six persons damaged national wildlife resources and made the national property suffer from losses, all parties should assume the compensation liability. The relevant losses were determined as CNY44,617 according to the verified value of the 63 wild migratory birds involved. On the basis of the specific roles played by all defendants in the crime, He Jianqiang, Zhong Dejun, Fang Jianhua, and Li Qiang were sentenced to fixed-term imprisonments ranging from six years to 12 years, in addition to fines for committing a crime of illegal killing of rare and endangered wildlife. Long Xueru, Long Zhen, and Long Qiming were sentenced to fixed-term imprisonments ranging from one year and two years and two of them were given probation of two years for committing a crime of illegal hunting. He Jianqiang and other six persons should jointly pay the Forestry Bureau of Yueyang City CNY44,617 as compensation. | | 湖南省岳阳市岳阳楼区人民法院一审认为：何建强伙同钟德军、方建华在湖南东洞庭湖国家级自然保护区内，采取投毒方式非法杀害国家二级保护动物小天鹅、白琵鹭及其它野生动物，李强帮助何建强购毒并全程负责对毒杀的野生候鸟进行销售，何建强、钟德军、方建华、李强的行为均已构成非法杀害珍贵、濒危野生动物罪，属情节特别严重。龙雪如、龙启明、龙真在何建强的授意下，采取投毒方式，分别在国家级自然保护区内猎杀野生候鸟，破坏野生动物资源，情节严重，其行为均已构成非法狩猎罪。何建强、钟德军的犯罪行为同时触犯非法杀害珍贵、濒危野生动物罪和非法狩猎罪，应择一重罪以非法杀害珍贵、濒危野生动物罪定罪处罚。此外，因何建强等七人的犯罪行为破坏了国家野生动物资源，致使国家财产遭受损失，各方应承担赔偿责任。相应损失以涉案63只野生候鸟的核定价值认定为44617元，根据各人在犯罪过程中所起的具体作用进行分担，判决何建强、钟德军、方建华、李强犯非法杀害珍贵、濒危野生动物罪，判处有期徒刑六年至十二年不等，并处罚金。龙雪如、龙真、龙启明犯非法狩猎罪，判处有期徒刑一年至二年不等，其中二人缓刑二年。由何建强等七人共同向岳阳市林业局赔偿损失人民币44617元。 |
| [Significance] | | 【典型意义】 |
| This is a civil action incidental to criminal proceedings concerning illegal hunting and killing of rare and endangered wildlife. Imposition of a penalty is an important way of environmental governance. With increasingly stern environmental resource problems, the adoption of criminal penalties to punish and prevent environmental resource-related crimes and exertion of more efforts to the criminal judicial protection of environmental resources are important links in protecting the ecological environment. This case took place in the Dongtinghu National Nature Reserve. While the procuratorial organ instituted a public prosecution, the relevant competent department of environmental resources instituted a civil action incidental to criminal proceedings. The procuratorial organ upheld the action and both the criminal liability and civil liability of the actors were investigated according to the law, which has higher reference value. Under the premise of determining that the seven defendants all had the subjective intents to kill wild migratory birds in the nature reserve by poisoning, the court of first instance properly distinguished each defendant's objective behaviors and separately convicted the seven defendants of the crime of killing rare and endangered wildlife and the crime of illegal hunting according to the principle of consistency between subjectivity and objectivity; in addition, the court of first instance distinguished principal offenders from accessory offenders according to the theory of joint crime and separately sentenced the seven defendants to fixed-term imprisonments ranging from one year to 12 years and some of them were given a probation, which has reflected the basic value orientation of severely punishing environmental resources-related crimes and highlighted the independent status of environmental legal interests, but embodied the criminal policy of combining punishment with leniency and gave full play to the deterrent and educational functions of the Criminal Law. In addition, in this case, both the criminal liabilities of defendants for killing wild migratory birds and the civil compensation liability for losses caused by their criminal activities to the national wildlife resources were investigated. It is of good exemplary significance for the co-handling of cases concerning environmental resources-related criminal offense and civil compensation. | | 本案系非法猎捕、杀害珍贵、濒危野生动物刑事附带民事诉讼案件。刑罚是环境治理的重要方式，面对日趋严峻的环境资源问题，运用刑罚手段惩治和防范环境资源犯罪，加大环境资源刑事司法保护力度，是维护生态环境的重要环节。本案发生于东洞庭湖国家级自然保护区内，在检察机关提起公诉的同时，由相关环境资源主管部门提起刑事附带民事诉讼、检察机关支持起诉，依法同时追究行为人刑事责任和民事责任，具有较高借鉴价值。一审法院在认定七名被告人均具有在自然保护区内投毒杀害野生候鸟的主观犯意前提下，正确区分各自的客观行为，根据主客观相一致原则对七名被告人分别以杀害珍贵、濒危野生动物罪和非法狩猎罪定罪；并根据共同犯罪理论区分主从犯，分别对七名被告人判处一年至十二年不等的有期徒刑，部分适用缓刑，既体现了从严惩治环境资源犯罪的基本价值取向，突出了环境法益的独立地位，又体现了宽严相济的刑事政策，充分发挥了刑法的威慑和教育功能。此外，本案不仅追究了被告人杀害野生候鸟的刑事责任，还追究了被告人因其犯罪行为给国家野生动物资源造成损失的民事赔偿责任，对环境资源刑事犯罪和民事赔偿案件的一并处理具有较好的示范意义。 |
| [Commentator]Qin Tianbao, professor of Wuhan University | | 【点评专家】秦天宝，武汉大学教授 |
| [Comments] | | 【点评意见】 |
| In this case, the judicial organ legally cracked down on criminal activities of illegal catching and killing of rare and endangered wildlife, which not only reflects the positive significance of China's justice mechanism in punishing environment-related criminal offenses and protecting the ecological environment, but has the positive significance in furthering the specialized development of China's environmental justice in future. | | 本案中司法机关依法对非法捕杀珍贵、濒危野生动物的犯罪行为进行打击，不仅体现了我国司法机制惩治环境犯罪行为、保护生态环境的积极意义，而且本对今后我国环境司法专门化的进一步发展具有积极意义。 |
| First, this case has reflected multi-sectoral coordination in the action of cracking down on environmental violations. In this case, after identifying the criminal activities, the administration of the Dongtinghu Nature Reserve of Hunan Province immediately transferred the case to the Forest Public Security Bureau of Yueyang City for handling. The public security organ positively conducted the work of case investigation and transfer, the procuratorial organ instituted a public prosecution according to the law, and the people's court finally rendered a judgment according to the law. In the meantime, the procuratorial organ dispatched personnel to uphold the civil action incidental to criminal proceedings instituted by the Forestry Bureau of Yueyang City. The coordination and cooperation among several departments including the administrative organ, the public security organ, the procuratorial organ, and the trial organ not only effectively cracked down on environmental violations, but represented the development direction of China's environmental justice mechanism in the new period. Second, this case has enhanced the public awareness of protecting the environment, especially wildlife. In this case, the people's court legally rendered a judgment against environmental violations, which not only made the violators subject to due punishments, but presented the specific operation mechanism of China's judicial organ for protecting the ecological environment to the public with such content as evidence verification and application of law. In the meantime, the participation of people's assessors and the court trial reflected the judicial organ's safeguarding of the public participation in environmental protection, so that the public awareness of environmental protection is enhanced. Finally, this case also positively explored the mechanism for restoration of the ecological environment. In the aspect of incidental civil compensation, the people's court rendered a judgment that defendants should compensate for damage to the national wildlife resources caused by their violations. Although pure economic compensation cannot fully fill up and repair the ecological environmental losses, the judgment of this case has reflected positive explorations of China's environmental judicial practice and has great significance in establishing a sound mechanism for restoration of the ecological environment in China. | | 首先，本案体现了打击环境违法行为中的多部门协作。本案中，湖南省东洞庭湖自然保护区管理局发现犯罪行为后立即将该案移交岳阳市森林公安局办理。公安机关积极进行案件侦办和移送工作，并由检察机关依法提起公诉，最终由法院依法作出判决。同时，检察机关还派员支持了由岳阳市林业局提起的刑事附带民事诉讼。行政机关、公安机关、检察机关、审判机关等多部门的协作配合不仅有效打击了环境违法行为，而且也代表了新时期我国环境司法机制的发展方向。其次，本案提升了公众保护环境、特别是野生生物的意识。本案中人民法院依法对环境犯罪行为进行了判决，不仅使违法行为人得到了应有的处罚，而且证据鉴定、法律适用等内容向公众呈现了我国司法机关保护生态环境的具体运行机制。同时，人民陪审员的加入以及开庭审理的方式体现了司法机关保障公众参与环境保护的权利，进而提升了公众的环境保护意识。最后，本案积极探索了生态环境修复机制。在附带民事赔偿部分，法院判决被告赔偿其违法行为造成的国家野生动物资源损失。虽然单纯的经济赔偿难以完全填补和修复生态环境损失，但本案判决体现了我国环境司法实践的积极探索，对于建立健全我国的生态环境修复机制具有重要意义。 |
| Case No. 4 | | 案例四： |
| Lv Jinkui and Other 78 Persons v. Shanhaiguan Shipbuilding Industry Co., Ltd. (Case concerning dispute over liability for marine pollution damages) | | 吕金奎等79人诉山海关船舶重工有限责任公司海上污染损害责任纠纷案 |
| [Basic Facts] | | 【基本案情】 |
| On the morning of August 2, 2010, the seawater in the sea area east of Laolongtou, Shanhaiguan, Qinhuangdao City was abnormal. The Monitoring Report issued by the Environmental Protection Bureau of Qinhuangdao City showed that the content of suspended solids in seawater was 24 mg/L, that of petroleum was 0.082 mg/L, and that of iron was 13.1 mg/L. The Identification Opinions issued by the Maritime Judicial Identification Center of Dalian Maritime University concluded that: On August 2, 2010, there was abnormal seawater in the sea area of Laolongtou, Shanhaiguan (near Shanhaiguan Shipbuilding Industry Co., Ltd. (hereinafter referred to as “Shanhaiguan Shipbuilding Company”)); the most seriously pollution factor in the sea water quality was iron, which had great damage to the fishery industry and aquaculture areas; Shanhaiguan Shipbuilding Company was the only coastal large enterprise near Laolongtou, Shanhaiguan. The content of iron accounted for a high proportion in the rust sewage generated in the repair of ships. Once there was a leakage, the surrounding waters would be severely polluted. Therefore, it was presumed that the source of polluted seawater was Shanhaiguan Shipbuilding Company. Lv Jinkui and other 78 persons were farmers who have been farming scallops in the sea areas of Laolongtou, Shanhaiguan for a long term. They requested the Tianjin Maritime Court to order that Shanhaiguan Shipbuilding Company should compensate CNY20,084,940 for aquaculture losses. | | 2010年8月2日上午，秦皇岛山海关老龙头东海域海水出现异常。秦皇岛市环境保护局的《监测报告》显示，海水悬浮物含量24mg/L、石油类0.082 mg/L、铁13.1 mg/L。大连海事大学海事司法鉴定中心出具《鉴定意见》，结论为：2010年8月2日山海关老龙头海域（靠近山船重工公司）存在海水异常区；海水水质中污染最严重的因子为铁，对渔业和养殖水域危害程度较大；根据山船重工公司系山海关老龙头附近临海唯一大型企业，修造船舶的刨锈污水中铁含量很高，一旦泄漏将严重污染附近海域，推测出污染海水源地系山船重工公司。吕金奎等79人系长期在山海关老龙头海域进行扇贝养殖的养殖户，诉请法院判令山船重工公司赔偿养殖损失20084940元。 |
| [Adjudication] | | 【裁判结果】 |
| In the trial of first instance, the Tianjin Maritime Court held that: There were only statements of respondents in the investigation transcripts prepared by the authorized agents ad litem of Lv Jinkui and other 78 persons and no objective field records were provided for evidence; the satellite images on which the Identification Opinions were based failed to prove that the farming area was polluted around 10:00 am on August 2, 2010. Therefore, the Tianjin Maritime Court rendered a judgment to reject the claims of Lv Jinkui and other 78 persons. Lv Jinkui and other 78 persons appealed to the Higher People's Court of Tianjin Municipality. In the trial of second instance, the Higher People's Court of Tianjin Municipality held that: The Maritime Judicial Identification Center of Dalian Maritime University had the corresponding identification qualification; the satellite remote sensing monitoring technology it adopted was scientific; the Identification Opinions and other evidence supported each other and could prove such three facts that Shanhaiguan Shipbuilding Company leaked sewage with a high content of iron to the seawater, Wang Lirong and other 20 person among the 79 persons involved engaged in scallop farming and the farming area was polluted and there may be causation between the pollution activities of Shanhaiguan Shipbuilding Company and damage to Wang Lirong and other 20 persons. Lv Jinkui and other 57 persons failed to satisfy the burden of proof. With respect to such issues that according to Shanhaiguan Shipbuilding Company, iron was not one of the substances in the standard for evaluating seawater quality and its act was not a tortious act of environmental pollution, the Higher People's Court of Tianjin Municipality held that: The environmental standard was not the sole basis for judging whether some kind of substance caused damage. According to the opinions of the competent department of environmental protection, the evaluation opinion of the identifier that iron in the water quality of the sea area involved had great harm to the fishery industry and the farming area may serve as the basis for determining that iron may cause damage. Shanhaiguan Shipbuilding Company failed to satisfy the burden of proof that there was circumstance of non-assumption of liability or assumption of mitigated liability as prescribed by law and there was no causation between acts and damage. Therefore, it should assume the compensatory liability. In light of the fact that the farming of Wang Lirong and other 20 persons was illegal as well as the conclusion that there were three categories of pollutants as determined in the Identification Opinions and iron discharged by Shanhaiguan Shipbuilding Company was the factor that most polluted the water quality, the Higher People's Court of Tianjin Municipality rendered a judgment that Shanhaiguan Shipbuilding Company should assume the liability of compensation for 40% of damage to farming of Wang Lirong and other 20 persons, CNY1,377,696 in total. After the judgment was pronounced, Shanhaiguan Shipbuilding Company voluntarily and fully performed the judgment. | | 天津海事法院一审认为：吕金奎等79人的委托诉讼代理人所做的调查笔录仅有被调查人陈述，未能提供现场的客观记录予以佐证；《鉴定意见》所依据的卫星图像不能证明养殖区域在2010年8月2日上午10时遭受污染，判决驳回吕金奎等79人的诉讼请求。吕金奎等79人上诉至天津市高级人民法院。天津市高级人民法院二审认为：大连海事大学海事司法鉴定中心具备相应的鉴定资质，选用卫星遥感监测技术具有科学性，《鉴定意见》与其他证据相互佐证，可以证实山船重工公司实施了向海水中泄漏含铁量较高污水的行为、涉案79人中的王丽荣等21人从事扇贝养殖且养殖区域遭受污染，以及山船重工公司的污染行为和王丽荣等21人损害之间可能存在着因果关系等三项事实。吕金奎等其余58人未能完成证明责任。关于山船重工公司提出铁物质不属于评价海水水质的标准，其行为不属于环境污染侵权行为的问题，二审法院认为，环境标准并非判断某类物质是否造成损害的唯一依据，依据环境保护主管部门意见，鉴定人作出的涉案海域水质中铁物质对渔业和养殖水域危害程度较大的评价，可以作为确定铁物质能够致害的依据。山船重工公司未能完成证明本案存在法律规定的不承担责任或者减轻责任的情形以及行为与损害之间不存在因果关系的证明责任，应承担赔偿责任。综合王丽荣等21人养殖行为不具有合法性的事实以及《鉴定意见》确定的污染物有三类，其中山船重工公司排放的铁物质对水质污染最严重的结论，判决山船重工公司对王丽荣等21人养殖损失承担40%的损害赔偿责任，共计1377696元。宣判后，山船重工公司主动履行了全部判决内容。 |
| [Significance] | | 【典型意义】 |
This is a case concerning dispute over compensation for damage caused by marine environmental pollution. In recent years, with the rapid economic and social development, new types of pollutants appear now and then and the disputes arising therefrom attract more and more attention. Under the circumstance where the substance not included in the environmental standards causes any damage consequences, whether the substance causing the damage is a “pollutant” in the environmental pollution liability and whether it constitutes a tort of environmental pollution are difficulties in the trial of this case by the people's court. In this case, based on proper allocation of the burden of proof and with respect to the defense of Shanhaiguan Shipbuilding Company that iron was not a standard for evaluating the water quality of seawater and its act did not constitute a tort of environmental pollution, the people's court took into full account of failure to update the relevant environmental standards in a timely manner and the identification opinions issued by the identifier with the professional qualification, determined that Shanhaiguan Shipbuilding Company should assume the tortious liability for its pollution acts, and established the adjudication rule that “pollutants” in environmental pollution liability should be all substances that may cause environmental damage and the discharge of substances that were not included in the environmental standards but caused any damage still constituted a tort of environmental pollution. The practice of the people's court has legally standardized activities of manufacturing enterprises and has good demonstration effects on the trial of similar cases.
．．．．．． | | 本案系海洋环境污染损害赔偿纠纷案件。近年来，伴随着经济社会的快速发展，新型污染物时有出现，由此引发的纠纷日益受到关注。在未纳入环境标准的物质导致损害结果的情况下，致害物质是否属于环境污染责任中的“污染物”以及是否构成环境污染侵权成为法院审理案件的难点。本案在正确分配举证证明责任的基础上，针对山船重工公司提出的铁物质不属于评价海水水质的标准，其行为不属于环境污染侵权行为的抗辩理由，综合考虑相关环境标准未及时更新和具备专业资质的鉴定人出具的鉴定意见，认定山船重工公司应就其污染行为承担侵权责任，确立了环境污染责任中“污染物”应界定为一切能够造成环境损害的物质，排放未纳入环境标准物质致损亦构成环境污染侵权的裁判规则，依法规范了生产企业的行为，对类似案件审理起到了较好的示范作用。
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