Notice of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Agriculture and Rural Affairs on Printing and Distributing the”Opinions on Punishing Illegal Fishing and Other Crimes in the Yangtze River Basin According to Law” (Gongtongzi [2020] No. 17)
By: Date: 2021-01-01 Categories: authoritativerelease Tags: ,
Higher People’s Courts, People’s Procuratorates, Public Security Departments (Bureaus), Agricultural and Rural Departments (Bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, Military Court of the People’s Liberation Army, Military Procuratorate, Fujian Ocean and Fishery Bureau, Xinjiang Uygur Autonomous Region High People’s Court Production and Construction Corps Branch, People’s Procuratorate of Xinjiang Production and Construction Corps, Public Security Bureau, Agriculture and Rural Affairs Bureau:
   In order to punish illegal fishing in the Yangtze River Basin and other illegal crimes that endanger aquatic biological resources, ensure the smooth implementation of the ban on fishing in the Yangtze River Basin, strengthen the protection of aquatic biological resources in the Yangtze River Basin, promote water ecological protection and restoration, and promote the construction of ecological civilization. Regarding the provisions of laws and judicial interpretations, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Agriculture and Rural Affairs jointly formulated the”Opinions on Punishing Illegal Fishing and Other Crimes in the Yangtze River Basin by Law.” Now it is printed and distributed, please implement it carefully in light of actual conditions. Please report to the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Agriculture and Rural Affairs in time for new situations and new problems encountered in the implementation.
   Supreme People’s Court Supreme People’s Procuratorate
   Ministry of Public Security, Ministry of Agriculture and Rural Affairs
   December 17, 2020
   Opinions on punishing illegal fishing and other crimes in the Yangtze River Basin according to law
   In order to punish illegal fishing in the Yangtze River Basin and other illegal crimes that endanger aquatic biological resources, ensure the smooth implementation of the ban on fishing in the Yangtze River Basin, strengthen the protection of aquatic biological resources in the Yangtze River Basin, promote water ecological protection and restoration, and promote the construction of ecological civilization. The relevant laws and judicial interpretations have formulated this opinion.
  I. Improve political positions and fully understand the significance of the ban on arrests in the Yangtze River Basin
   The ban on arrests in the Yangtze River Basin is to implement the spirit of General Secretary Xi Jinping’s important instructions on”to protect the Yangtze River and not to engage in large-scale development”. It is an important measure to protect the mother river of the Yangtze River and strengthen the construction of ecological civilization. It is an important measure for the overall situation and for future generations. Important decisions that contribute to the present and benefit the future. People’s courts at all levels, people’s procuratorates, public security organs, and agricultural and rural (fishery) departments must strengthen the “four consciousnesses”, strengthen the “four self-confidence”, and achieve “two safeguards”, and in-depth study and comprehend General Secretary Xi Jinping’s important instructions Spirit, take the ban on catching in key waters of the Yangtze River basin as a major political task at present, make full use of legal provisions, severely punish illegal fishing and other crimes that endanger aquatic biological resources in accordance with the law, strengthen the connection between administrative law enforcement and criminal justice, and make every effort to destroy The “underground industry chain of transportation, transportation, and marketing” provides a powerful legal guarantee for the promotion of the protection and restoration of the aquatic biological resources and water ecology in the Yangtze River Basin, and the high-quality and green development of the Yangtze River Economic Belt.
  2. Accurately apply the law, and severely punish illegal fishing and other crimes that endanger aquatic biological resources in accordance with the law
   (1) Severely punish illegal fishing crimes in accordance with the law. Violation of the laws and regulations on the protection of aquatic resources, illegal fishing of aquatic products in the key waters of the Yangtze River Basin, and one of the following circumstances, shall be convicted and punished for the crime of illegal fishing of aquatic products in accordance with the provisions of Article 340 of the Criminal Law:
   1. Illegal fishing of aquatic products of more than 500 kilograms or more than 10,000 yuan;
  2. Illegal fishing of aquatic animal seed, pregnant broodstock with important economic value, or fishing of aquatic products of more than 50 kilograms or more than 1,000 yuan in the aquatic germplasm resource protection zone;
  3. Fishing in prohibited areas using electric fish, poisoned fish, fried fish and other prohibited methods that seriously damage fishery resources;
  4. Fishing in prohibited areas using prohibited tools specified by the Ministry of Agriculture and Rural Affairs;
  5. Other serious circumstances.
   (2) Severely punish crimes that endanger precious and endangered aquatic wildlife resources in accordance with the law. Anyone who illegally hunts and kills Chinese sturgeon, Yangtze sturgeon, Yangtze finless porpoise or other precious and endangered aquatic wild animals under key protection of the state in key waters of the Yangtze River Basin, with a value of more than 20,000 yuan but less than 200,000 yuan, shall be in accordance with the 34th Criminal Law According to Article 11, the crime of illegal hunting and killing of rare and endangered wild animals shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and fined; if the value is more than 200,000 yuan but less than 2 million yuan, it shall be deemed as”circumstance” Serious” shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and a fine; those worth more than two million yuan shall be deemed as “particularly serious” and sentenced to fixed-term imprisonment of not less than ten years, fined or confiscated.
   (3) Severely punish the crime of illegal fishing catch trading in accordance with the law. Anyone who knows that the aquatic products obtained by illegally fishing in the key waters of the Yangtze River Basin and purchased and sold the value of more than 10,000 yuan shall be convicted and punished for the crime of concealing and concealing the proceeds of crime in accordance with the provisions of Article 312 of the Criminal Law.
  Illegal purchase, transportation, and sale of Chinese sturgeon, Yangtze sturgeon, Yangtze finless porpoise, or other precious and endangered aquatic wild animals and their products that are illegally hunted and killed in key waters of the Yangtze River Basin, with a value of more than 20,000 yuan. 200,000 yuan, in accordance with the provisions of Article 341 of the Criminal Law, shall be sentenced to fixed-term imprisonment or criminal detention of not more than five years for the crime of illegally purchasing, transporting, and selling precious, endangered wild animals, precious and endangered wild animal products, and Fines; if the value is more than 200,000 yuan but less than 2 million yuan, it shall be deemed as”serious”, and shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years and fined; if the value is more than 2 million yuan, it shall be deemed as” The circumstances are particularly serious”, sentenced to more than ten years in prison, fined or confiscated.
  (4) Severely punish unit crimes that endanger aquatic biological resources in accordance with the law. If aquatic product trading companies, catering companies and other entities implement the actions specified in this opinion and constitute a unit crime, the directly responsible person in charge and other directly responsible persons shall be convicted and punished, and the unit shall be fined in accordance with the conviction and sentencing standards stipulated in this opinion.
  (5) Severely punish dereliction crimes that endanger aquatic biological resources in accordance with the law. If a staff member of a state agency responsible for the supervision, management, and administrative law enforcement of the protection of aquatic biological resources in the key waters of the Yangtze River Basin abuses their power or neglects their duties, causing major losses to public property, the state and the people’s interests, they shall be subject to the 390th Criminal Law According to Article 7, the crime of abuse of power or dereliction of duty shall be convicted and punished.
   State agency staff responsible for the investigation and prohibition of criminal activities destroying aquatic biological resources, who inform criminals, provide conveniences, and help criminals evade punishment shall be assisted in accordance with the provisions of Article 417 of the Criminal Law Criminals are convicted and punished for evading punishment.
  (6) Severely punish illegal acts that endanger aquatic biological resources in accordance with the law. If the above-mentioned conduct does not constitute a crime, the agricultural and rural (fishery) departments shall impose administrative penalties in accordance with the Fisheries Law and other laws and regulations; if the conduct constitutes a violation of public security management, the public security organ shall impose public security management penalties in accordance with law.
  (7) Implement the criminal policy of combining leniency and strictness. If the conduct specified in this opinion has been committed multiple times constitutes a crime and should be prosecuted in accordance with the law, or the conduct specified in this opinion has not been dealt with twice or more within two years, the total amount shall be calculated.
   The implementation of the crimes stipulated in this opinion, and one of the following circumstances, shall be punished severely:(1) Violent resistance, obstructing the performance of duties by the staff of state organs in accordance with the law, and has not yet constituted a crime of obstructing public affairs; (2) The crime has been committed within two years The actions stipulated in this opinion have been punished; (3) Caused serious damage to the biological resources of the Yangtze River or water ecology; (4) Caused severe social impact and other bad circumstances. Under the above circumstances, non-prosecution, suspended sentence, and exemption from criminal punishment are generally not applicable.
  Illegal fishing of aquatic products, based on the quantity, value of the catch, fishing methods, tools, etc., if it is deemed that the harm to aquatic biological resources is obviously minor, it can be determined as the crime is minor and not prosecuted or exempted from criminal punishment. , Except for those who have been punished for destroying aquatic resources.
  Illegal hunting, acquisition, transportation, sale of precious and endangered aquatic wild animals, without causing animal deaths, comprehensive consideration of behavioral means, subjective offenses, criminal motives, amount of profit, degree of endangerment, quantitative value and behavior of the aquatic organisms involved If a person’s attitude of confession and repentance, restoration of the ecological environment, etc., believe that the application of the conviction and sentencing standards stipulated in this opinion is obviously too heavy, it can be properly handled in accordance with the actual situation of the specific case to ensure that the crime, responsibility and punishment are compatible.
  3. Improve and improve the working mechanism to ensure the effectiveness of related cases
   (1) Do a good job of returning from arrest to production. According to relevant regulations, fishermen in the Yangtze River Basin will be converted from fishing to production in accordance with relevant national and local policies, and fishing will be banned in key areas. It is necessary to increase investment in accordance with the requirements of the central government, implement relevant subsidy funds, implement classified policies and precise assistance according to the specific conditions of fishermen, promote fishermen’s conversion and employment through various methods such as industrial development, employment, support for entrepreneurship, and public welfare positions, and effectively maintain The rights and interests of fishermen withdrawing fishing shall be protected and the livelihoods of fishermen shall be protected.
   (2) Strengthen the administrative enforcement of arrests. The agricultural and rural (fishery) departments at all levels in the Yangtze River Basin should strengthen the publicity, education and guidance of the prohibition of catching, set up signs for the prohibition of catching areas in key waters, establish a”fisherman” coordinated patrol system, and continuously improve the level of civil defense technology to ensure that catching is prohibited The system was implemented smoothly. Strengthen law enforcement team and capacity building, strict law enforcement supervision, speed up the deployment of arrest and law enforcement equipment and facilities, increase administrative law enforcement and case investigation, and effectively implement the Yangtze River’s arrest ban requirements. For illegal fishing involving ships with no name, no port of registry, and no ship certificate, the disposal process must be improved, and they shall be confiscated, dismantled, and disposed of in accordance with the law. It is necessary to intensify the investigation and punishment of illegal activities such as the manufacture and sale of banned fishing gear. Those who manufacture and sell banned fishing gear shall be confiscated according to law and their illegal income, and fined. It is necessary to strengthen coordination and cooperation with relevant departments, strengthen management and administrative law enforcement in the surrounding areas of prohibited waters, strengthen management of aquatic product trading markets and catering industry, and investigate and deal with illegal fishing and acquisition, processing, sales, and use of illegal catches in accordance with laws and regulations. Cut the underground industrial chain. It is necessary to strengthen the connection between administrative law enforcement and criminal justice, and transfer suspected criminal cases to the public security organs in a timely manner. If the administrative agency responsible for the protection of aquatic biological resources illegally exercises its powers or does not act, causing the national interest or the public interest to be infringed, the procuratorial agency may initiate an administrative public interest lawsuit in accordance with the law.
   (3) Comprehensive collection of evidence materials involved in the case. Evidence materials such as physical evidence, documentary evidence, audio-visual materials, and electronic data collected by administrative agencies such as agricultural and rural (fishery) departments in the process of administrative law enforcement and investigation of cases can be used as evidence in criminal proceedings or public interest litigation. Agricultural and rural (fishery) departments and other administrative agencies and public security agencies shall collect all kinds of evidence related to the case in a timely and comprehensive manner in accordance with the law, and conduct audio and video recordings in accordance with the law to lay a factual foundation for the legal handling of the case. For the vessels, fishing tools, catches, etc. involved in the case, the evidence should be secured after taking photos, audio and video recording, weighing, and sample extraction, etc., and then properly kept in accordance with the law; if the public security organs have difficulty keeping them, they can entrust the agricultural and rural areas (fishery administration) The department keeps; for the catch that needs to be released, it can be released after the fixed evidence; for the dead and not suitable for long-term preservation, the agricultural and rural (fishery) department can use donations for scientific research, public welfare or Destruction and other methods.
   (4) Accurately identify relevant specialized issues. Regarding the scope of ban on catching in key waters of the Yangtze River Basin (forbidden catching area and time), it shall be determined in accordance with the relevant announcement of the Ministry of Agriculture and Rural Affairs on the scope and time of ban on catching in key waters of the Yangtze River Basin. If the fish caught in this case are rare and endangered aquatic wild animals under national key protection, the value of the animals and their products can be calculated according to the assessment criteria and methods formulated by the wildlife protection department of the State Council comprehensively considering the ecological, scientific, and social values ​​of wild animals. The value of other catches shall be determined based on the amount of stolen goods; if there is no amount of stolen stolen goods, the amount of stolen goods sold is difficult to verify, or the amount of stolen goods is determined to be significantly low based on the amount of stolen goods sold, it shall be calculated based on the market price; The certification and report are issued by the relevant price certification agency. For specialized issues such as the prohibited area, time of prohibition, prohibited methods, prohibited tools, species of catch, and the degree of harm to aquatic biological resources, the agricultural and rural (fishery) department shall issue an identification within two working days Opinion; if it is difficult to determine, the judicial appraisal agency shall issue an appraisal opinion, or an agency designated by the Ministry of Agriculture and Rural Affairs shall issue a report.
   (5) Correctly determine the facts of the case. It is necessary to comprehensively review the evidence related to the conviction and sentencing, to ensure that the evidence based on the verdict is verified by legal procedures, to ensure that the evidence of the whole case is integrated, and reasonable doubts are excluded from the facts ascertained. Not only must the confession and defense of criminal suspects and defendants be reviewed, but also the review and judgment of relevant physical evidence, documentary evidence, witness testimony, audiovisual materials, electronic data and other evidence. If it is difficult to directly determine the facts such as whether illegal fishing operations such as electric fish, poisoned fish, and fried fish are carried out, whether they have entered the prohibited waters, and the types and quantities of illegal fishing catches, they can be based on on-site law enforcement audio and video records, Evidence materials such as video surveillance around the scene of the crime, witness testimony, etc., combined with the confession and defense of the criminal suspect and defendant to make a comprehensive determination.
  (6) Strengthen work coordination. The people’s courts, people’s procuratorates, public security organs, and agricultural and rural (fishery) departments must perform legal duties in accordance with the law, divide responsibilities, cooperate with each other, and check each other to ensure the smooth transfer, investigation, prosecution, and trial of cases. For those obstructing law enforcement and violently resisting the law, the public security organs must deal with them promptly in accordance with the law to ensure the safety of law enforcement. Criminal suspects or defendants who voluntarily and truthfully confess their crimes, admit the facts of the alleged crimes, and are willing to accept punishment, can be leniently dealt with in accordance with law; for minor crimes and do not require punishment or exemption from punishment in accordance with the law, the People’s Procuratorate may not Prosecution decision. The people’s procuratorate may file a civil public interest lawsuit in accordance with the law for acts that endanger aquatic biological resources and cause the public interest to be violated. For cases where the People’s Procuratorate makes a decision not to prosecute, the People’s Court makes a verdict of innocence or exempts criminal punishment, and requires administrative punishment, the agricultural and rural (fishery) departments shall impose administrative punishments in accordance with the law.
   (7) Strengthen publicity and education. The people’s courts, people’s procuratorates, public security organs, and agricultural and rural (fishery) departments must conscientiously implement the responsibility system of”whoever enforces the law, popularize the law”, and carry out in-depth and meticulous publicity and education of the rule of law in conjunction with case handling. It is necessary to select typical cases to interpret the law, increase warning education, deter criminals, and fully demonstrate the determination to punish illegal fishing and other crimes in the Yangtze River basin in accordance with the law, and strengthen the protection of aquatic biological resources and the restoration of water ecological protection. It is necessary to guide the general public to abide by laws and regulations, to support and cooperate with the arrest ban in accordance with the law, and to create a good rule of law and social environment for the smooth implementation of arrest bans in key waters of the Yangtze River Basin.