Juridical argument
Experience case animal is included CITES appendix Ⅱ , but in judicatory explanation subordinate list only with the country of the division one class protects wild animal, without congeneric or with the country of the division 2 class protect wild animal, follow concept of curb of criminal law modest, must not consult one class protects this country wild animal " the clue is serious " or " the clue is special and serious " cognizance standard is carried out. Experience case animal is included Ⅱ of CITES appendix Ⅰ , appendix, but do not have in judicatory explanation subordinate list congeneric or with the country of the division one, 2 class protect wild animal, without can offer consult " the clue is serious " " the clue is particularly serious " cognizance standard, according to the blame criminal law decides a principle, can maintain only for " general circumstances " .
Details of a case
Came 2012 during 2013, huang Mou buys red end Ran 8, ball boa 2, again with bought red end Ran 6 exchange get ball boa 2, reticulation boa 2, prevent family name Ran 2, be raised in order to use as and sell, and by Huang Mou of its mother Guo Mou, its father strong hand is raised. Came 2012 during 2016, huang Mou sells red end Ran early or late 6, illegal earning 17400 yuan. On November 24, 2016, investigation personnel seizes Huang Mou strong, and according to Huang Mou strong offerred accurate address seizes Huang Mou. On December 7, 2016, guo Mou accompanies next going to in the relative case.
Judgment
Cognizance of classics of court of people of division of bay of Li of city of Guangdong province Guangzhou thinks, huang Mou is formed buy illegally, sell blame of precious, endangered wild animal, the clue is particularly serious. Guo Mou, Huang Mou is strong form sell blame of precious, endangered wild animal illegally, belong to general circumstances. Guo Mou, Huang Mou is strong it is accessary criminal, guo Mou is formed confess one's crime, person of 3 the accused confesses the guilt that narrates his according to the facts, give lawfully light punishment. Reason with be being bought illegally, sell blame of precious, endangered wild animal, sentence Huang Mou set term of imprisonment 10 years, punish gold 20 thousand yuan, with selling blame of precious, endangered wild animal illegally, sentence strong set term of imprisonment of Guo Mou, Huang Mou, applicable probation, punish gold.
After adjudging, huang Mou refuses to obey, mention appeal. Cognizance of classics of court of Guangzhou city intermediate people thinks, boa of experience case ball, reticulation boa is included " be in severe danger convention of international trade of species of wild vivid plant " (CITES of the following abbreviation) appendix Ⅱ , cannot consult one class protects the country wild animal " boa " cognizance standard is carried out, judicatory also is not had in explanatory subordinate list congeneric or with the country of the division wild animal of 2 class protection can be offerred consult, experience case prevent family name Ran, red end Ran also does not have the country that can offer reference one, 2 class protect wild animal, cannot maintain Huang Mou to belong to " the clue is serious " or " the clue is particularly serious " . Amount of Huang Mou guilt is less, gain profit not much, did not cause the serious consequence that a large number of animals die, belong to guilty clue lighter; Still consider Huang Mou does not have revolt in capturing a process at the same time, confess the guilt that narrates oneself according to the facts to case hind, have the light plot such as honest expression, satisfy set term of imprisonment of Huang Mou of change the original sentence one year 0 months, punish gold 10 thousand yuan.
Review analyse
" top people court destroys case of criminal of wildlife natural resources about cognizance specific application law the explanation of a certain number of problems " (the following abbreviation " explanation " ) the 10th regulation: "Illegal hunt is caught, killing, buy, carry, sell " be in severe danger convention of international trade of species of wild vivid plant " appendix one, the wild animal that the blame that the appendix lists 2 times originates in our country formerly ' the clue is serious ' , ' the clue is particularly serious ' cognizance standard, consult to explain the 3rd originally, the 4th and row of subordinate list place and its congeneric country one, the cognizance standard of wild animal of 2 class protection is carried out; Without as congeneric as its country one, 2 class protect wild animal, consult to be the same as the country of the division with its one, the cognizance standard of wild animal of 2 class protection is carried out. " the author combines this case to be opposite this how applicable make following analysises:
1. is bought illegally, the wild animal that the blame that sells place of CITES appendix Ⅱ is listed originates in our country formerly, but only in judicatory explanation subordinate list congeneric or with the country of the division one class protects wild animal, not congeneric or with the country of the division 2 class protect wild animal, whether consult does one class protect this country wild animal " is the clue serious " , " is the clue particularly serious " is cognizance standard carried out? The first kind of viewpoint thinks, should consult " total office of bureau of forestry of procuratorate of top people court, top people, country, the Ministry of Public Security, customs about destroying criminal of wildlife natural resources the CITES appendix Ⅰ that involves in the case is mixed appendix Ⅱ place lists Liu Shengye check and ratify of value of vivid content product, ought to consult the check and ratify of standard of congener product value that emphasis of this kinds of nation protects Liu Shengye to give birth to an animal " the regulation is carried out, can carry out with consulting. The 2nd kind of viewpoint thinks, according to the definition of CITES, the treaty protection to the species in Ⅱ of appendix Ⅰ , appendix strength is apparently different. " announcement " also make clear: "Be not the CITES appendix Ⅰ that produces our country formerly and appendix Ⅱ place to list Liu Shengye to give birth to an animal to already was parted lawfully approve is a country one class, 2 class protect wild animal " , reason cannot consult carry out, will cause abnormal of measurement of penalty to weigh otherwise, violate concept of curb of criminal law modest. The author agrees with the 2nd kind of viewpoint.
The author thinks, be not the CITES appendix Ⅰ that originates in our country formerly and appendix Ⅱ place to list Liu Shengye to give birth to an animal to part one class, 2 class protect corresponding country wild animal, should consult " explanation " subordinate list place is listed " congeneric or with division " the cognizance standard of the animal that be the same as archives is carried out, not was the same as archives animal, but downshift consults, but must not rise archives to consult. A variety of animals that be the same as archives can be offerred consult, the basis is helpful for the principle of the accused person, should consult the cognizance standard of the animal with quantitative top level is carried out.
2. is bought illegally, the wild animal that the blame that sells place of Ⅱ of CITES appendix Ⅰ , appendix is listed originates in our country formerly, but do not have in judicatory explanation subordinate list congeneric or with the country of the division one, 2 class protect wild animal, whether entirely according to general case measurement of penalty? The first kind of viewpoint thinks, should consult " announcement " the first regulation is carried out, can consult to be the same as the eye, country that be the same as key link or is the same as the door with its one, the cognizance standard of wild animal of 2 class protection is carried out. The protective strength that can cause species of pair of partial appendix Ⅱ otherwise is more than appendix Ⅰ species apparently, be contrary to with convention spirit appearance. The 2nd kind of viewpoint thinks, although experience case animal is included CITES appendix Ⅰ or appendix Ⅱ , but in " explanation " do not have in subordinate list as congeneric as its or with the country of the division one, 2 class protect wild animal, do not have what can offer reference " the clue is serious " " the clue is particularly serious " cognizance standard, according to the blame criminal law decides a principle, can maintain only for general case. The author agrees with the 2nd kind of viewpoint.
