Farmers sell ＂their own wild＂ Zhennan tree, which is interpreted by public prosecution lawyers as three major disputes.
Zhang Moumou, a farmer in Muchuan County, Leshan City, Sichuan Province, sold a wild Phoebe bournei tree at a price of 1,500 yuan, and was prosecuted by the People’s Procuratorate of Muchuan County for endangering the state’s key protected plants. After identification, the cut forest is a natural forest with a volume of 1.315 cubic meters.
On February 7th, 12309 China Procuratorate Network announced the indictment of the case. The People’s Procuratorate of Muchuan County believes that Zhang Moumou illegally sells the plants under special state protection and the buyer Liao Moumou illegally cuts the plants under special state protection. Both of them have violated Article 344 of the Criminal Law of People’s Republic of China (PRC). The criminal facts are clear and the evidence is true and sufficient, so they should be investigated for criminal responsibility for endangering the plants under special state protection. According to the provisions of Article 176 of the Criminal Procedure Law of People’s Republic of China (PRC), if a public prosecution is initiated, please sentence it according to law.
indictment
The case caused controversy on the Internet. Some netizens said, "Your own tree is private property. Why should you be prosecuted?" “‘ Zijia ’ And ‘ Wild ’ Is it not contradictory? "
Red Star journalists interviewed lawyer Lin Xiaoming, a partner of Sichuan Yishang Law Firm, and lawyer Lan Tianbin, a partner of Jiangsu Fade Dongheng Law Firm, to interpret relevant disputes.
Controversy 1: Is the Phoebe bournei sold private property?
Some netizens believe that Zhang Moumou sells its own Phoebe zhennan tree, which belongs to its "private property".
In this regard, Lin Xiaoming, a lawyer, told Red Star News that the Reply on Issues Concerning the Application of Article 344 of the Criminal Law of People’s Republic of China (PRC) jointly issued by the Supreme People’s Court and the Supreme People’s Procuratorate clearly stipulated the scope of precious trees or other plants under state key protection, the understanding and application of illegally transplanted plants under state key protection, and other related issues. "Ancient and famous trees and wild plants listed in the List of Wild Plants under State Key Protection belong to Article 344 of the Criminal Law ‘ Precious trees or other plants under special state protection ’ 。”
A message from a netizen
The "Reply" also pointed out that according to the "Regulations on the Protection of Wild Plants", wild plants are limited to plants that grow naturally in the original place. Artificially cultivated plants, except ancient and famous trees, do not belong to "precious trees or other plants under special state protection" as stipulated in Article 344 of the Criminal Law. According to the Measures for the Protection and Management of Ancient and Famous Trees in Cities, famous trees refer to trees that are rare at home and abroad and have historical value, commemorative significance and important scientific research value. Therefore, if the party concerned fails to apply for the corresponding cutting license in accordance with the regulations and fails to deal with cutting or selling in accordance with the approval, his behavior has been suspected of committing a crime.
Lawyer Lan Tianbin said that villagers have the right to use private plots or private hills, and have the right to plant crops on private plots and trees on private hills. However, according to the List of National Key Protected Wild Plants, Phoebe bournei belongs to the second-class national key protected wild plants. In other words, the trees involved belong to the national key protected wild plants, and private individuals cannot cut them at will without the permission of the competent forestry authorities.
Controversy 2: Is "home" and "wild" contradictory?
According to the indictment, Zhang Moumou will sell "a wild Phoebe bournei tree". Many netizens have doubts, how to judge whether the trees in their own plots can be cut or sold?
"There is no contradiction." Lawyer Lin Xiaoming said that according to the List of Wild Plants under Special State Protection, Phoebe belonging to Lauraceae is a national second-class precious trees, and it is forbidden to illegally cut, destroy or illegally purchase, sell or transport it. Therefore, there is no contradiction between home and wild. The artificially planted trees on private plots or private hills, if listed in the List of Wild Plants under Special State Protection, need to be treated in accordance with relevant regulations and approved, otherwise it will be illegal logging, destruction of precious trees or illegal acquisition, transportation, processing and sale.
Lawyer Lin Xiaoming also said that as to how to judge whether the trees growing on the hilly land or the private land can be cut or sold, it needs to be determined by referring to the List of Wild Plants under Special State Protection, and the corresponding procedures should be handled and approved before disposal.
Lawyer Lan Tianbin said that the trees grown on his own plots or hills are generally his own private property. However, some villagers’ private plots or private hills may spontaneously grow wild plants under special state protection, which cannot be cut at will. If you are not sure whether it is an ordinary tree or a key protected wild plant, you can consult the competent forestry department. In addition, according to the provisions of the Forest Law, cutting trees on forest land should apply for a cutting license, and cutting should be carried out in accordance with the provisions of the cutting license.
Controversy 3: The number of Phoebe bournei trees sold is only one. Why is it against the law?
Some netizens don’t understand that Zhang Moumou only sells "one" Phoebe bournei tree at a price of 1,500 yuan, which is a small quantity and low price, which also violates the law?
In this regard, lawyer Lan Tianbin believes that according to the Provisions of the Supreme Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (I), illegal logging and destruction of precious trees or other plants under special state protection in violation of state regulations should be filed for prosecution. In violation of state regulations, illegal acquisition, transportation, processing and sale of precious trees or other plants and their products under special state protection shall be filed for prosecution. "In other words, if you illegally cut or sell a national key protected plant, you can file a case for prosecution."
As for how many national key protected plants are illegally cut or sold and how much profit they make, it is a consideration for sentencing.
"In practice, some villagers really don’t know which plants are under state protection, so we should also increase the publicity of law popularization." Lawyer Lan Tianbin said, "At the same time, in view of some parties’ minor crimes, little social harm, surrender, meritorious service, confession and punishment, the judicial organs may also consider not prosecuting or exempting from criminal punishment and probation, and strive for the unity of legal and social effects in line with the policy of combining punishment with education."
Lawyer Lin Xiaoming told the Red Star journalist that according to the provisions of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destruction of Forest Resources, illegal logging and destruction of precious trees are "serious" in any of the following circumstances: (1) illegal logging of more than 2 precious trees plants or destruction of precious trees caused more than 3 deaths in precious trees; (2) illegal logging of more than 2 cubic meters in precious trees; (3) Leading the organization in planning and directing illegal logging or destroying precious trees; (4) Other serious circumstances.
Lawyer Lin Xiaoming also said that according to the Provisions of the Ministry of Public Security of the Supreme People’s Procuratorate on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (I), those who illegally cut and destroy precious trees or other plants under special state protection in violation of state regulations should file a case for prosecution.
He explained that "precious trees or other plants under special state protection" includes ancient and famous trees with great historical commemorative significance, scientific research value or long history determined by forestry authorities or other departments at or above the provincial level, precious trees, whose export is prohibited or restricted by the state, and trees or other plants listed in the List of Wild Plants under Special State Protection.
Therefore, the suspect’s criminal facts are clear, and the evidence is true and sufficient. There is no legal obstacle to investigate his criminal responsibility for the crime of endangering the state’s key protected plants, and the number of trees cut and the profit are irrelevant. According to the fact that the accumulation of nanmu illegally cut by the parties concerned is 1.315 cubic meters, it can be known that their behavior has not reached the level of "serious circumstances", which belongs to the content that needs to be considered in sentencing.
Red Star journalist Shelly
Editor Zhang Li