Recently, the website of the National People's Congress (NPC) of the People's Republic of China published the “Amendments to the Criminal Law (XI) (Draft)” to solicit public opinions. After serious discussion and research, the legal work committee of China Biodiversity Conservation and Green Development Foundation (CBCGDF) put forward the following six recommendations for amendments and submitted to the Commission for Legislative Affairs of the NPC Standing Committee on August 14 by mail.

I. Add the "Animal Epidemic Prevention Law" and the "Food Safety Law" as pre-laws for the provisions of the crime of obstructing the prevention and control of infectious diseases

The prevention and control of infectious diseases is closely related to animal epidemic prevention and food safety, especially in terms of animal epidemic prevention. At present, many infectious diseases are transmitted through animals and food chains. Therefore, it is necessary to make the "Animal Epidemic Prevention Law", "Food Safety Law" and other laws as the pre-laws of this clause.

It is recommended that the "violation of the Law on the Prevention and Control of Infectious Diseases" in Item 21 of the "Draft" should be amended to the “Law on the Prevention and Control of Infectious Diseases”, the “Animal Epidemic Prevention Law”, and the “Food Safety Law”.

II. The provisions on the crime of environmental pollution should be consistent with the criminal justice interpretation of environmental pollution

It is recommended:

1. The provisions of the 24th item of the "Draft" on the incriminating standards for environmental pollution crimes should be consistent with the relevant provisions of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Environmental Pollution" are consistent, including:

(1) Discharging, dumping, and disposing of radioactive waste, waste containing infectious disease pathogens, and toxic substances in the primary protection area of drinking water sources and the core area of nature reserves;

(2) Illegal discharge, dumping, or disposal of more than three tons of hazardous waste;

(3) Discharge, dump, or dispose of pollutants containing lead, mercury, cadmium, chromium, arsenic, thallium, and antimony that exceed three times the national or local pollutant emission standards;

(4) Discharge, dump, or dispose of pollutants containing nickel, copper, zinc, silver, vanadium, manganese, and cobalt that exceed the national or local pollutant emission standards by more than ten times;

(5) Discharging, dumping, and disposing of radioactive waste, waste containing infectious disease pathogens, and toxic substances through concealed pipes, seepage wells, seepage pits, fissures, karst caves, injections and other methods that evade supervision;

(6) Those who have received administrative penalties more than two times for discharging, dumping, or disposing of radioactive wastes, wastes containing infectious disease pathogens, and toxic substances in violation of national regulations within two years, and have performed these actions;

(7) Key pollutants discharging units tamper with or forge automatic monitoring data or interfere with automatic monitoring facilities to discharge pollutants such as chemical oxygen demand, ammonia nitrogen, sulfur dioxide, and nitrogen oxides;

(8) Illegally reduced the operating expenditure of pollution prevention facilities by more than one million yuan;

(9) Illegal gains or causing losses of more than 300,000 yuan in public or private property;

(10) Causing serious damage to the ecological environment;

(11) Resulting in the interruption of water intake from centralized drinking water sources above the township for more than 12 hours;

(12) Resulting in basic farmland, protective forest land, and forest land for special purposes exceeding 5 mu, other agricultural land exceeding 10 mu, and other land exceeding 20 mu whose basic functions are lost or suffer permanent damage;

(13) Causing the death of forests or other trees of more than 50 cubic meters, or the death of more than 2,500 young trees;

(14) Resulting in the evacuation or transfer of more than 5,000 people;

(15) Causing the poisoning of more than 30 people;

(16) Causing more than three people to suffer minor injuries, mild disabilities, or damage to organs and tissues, resulting in general dysfunction;

(17) Causing more than one person to suffer serious injury, moderate disability, or damage to organs and tissues, resulting in severe dysfunction;

(18) Other serious environmental pollution.

2. Specific quantitative provisions have been made for the "large amount" in "(3) Cause a large amount of basic farmland" in the 24th item of the "Draft".

III. Should be better integrated with the Wildlife Protection Law

The twenty-fifth item of the "Draft" is in response to the country's comprehensive ban on the consumption of wild animals, which is worthy of recognition. However, in this crime, there is no classification or classification of wild animals, only the terrestrial wild animals other than the "national key protected rare and endangered wild animals" in the first paragraph of Article 341. There is no distinction between "terrestrial wild animals that are beneficial or have important economic and scientific research value protected by the state" and "common wild animals". There are related distinctions in the Wildlife Protection Law. The "Draft" puts "common wild animals" and "terrestrial wild animals that are beneficial or have important economic and scientific research value protected by the state" together, equal punishment is in conflict with the relevant provisions of the Wildlife Protection Law (not competing), it is easy to cause the dilemma of the application of law enforcement basis.

It is recommended:

1. In the expression of "terrestrial wild animals other than those specified in the preceding two paragraphs", distinguish between "terrestrial wild animals that are beneficial or have important economic and scientific research value protected by the state" and "common wild animals", it can better integrate with the special provisions of the Wildlife Protection Law.

2. "Serious circumstances" is difficult to judge, how much can only be considered as serious? It is recommended to give specific and quantitative regulations.

IV. Strengthen the normative expression of legal terms

V. More detailed regulations for reclamation, development activities or construction of buildings in national nature reserves

Priority protection should be carried out on national nature reserves, and no one is allowed to carry out reclamation, development activities or construct buildings in national nature reserves at will. The original text of the "Draft" only imposes sentencing provisions for serious consequences or other bad circumstances. In practice, this provision gives law enforcement officials too much discretion. For situations that severely damage the ecology or pollute the environment, and have such dangers, in the end only pay a fine, which is not conducive to punishing this type of crime. Distinguishing between two levels of sentencing not only helps to increase the awe of the law by the offenders with lesser circumstances and take the initiative to correct them, but also helps to punish the offenders who cause serious consequences or have other bad situations, to meet the guilt and responsibility.

It is recommended that the 27th item of the "Draft" should be amended to: “Violating the regulations on the management of nature reserves, conducting reclamation, development activities or constructing buildings in national nature reserves shall be punished by a fixed-term imprisonment of not more than three years, detention or surveillance, and shall be punished or divided by a fine, and demolish illegal buildings; Those who cause serious consequences such as environmental pollution or ecological damage, or have other bad circumstances, shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years or criminal detention, fines, and demolition of illegal buildings”.

VI. Adjust the severity of the crime of dereliction of duty in food supervision

The "Criminal Law" was formulated to prevent and punish criminal acts, and the law also has many unpredictable and uncoverable situations. According to the 27th item (3) of the "Draft," it would be too harsh to be convicted just because the administrative staff did not have the foresight.

It is recommended that item 27 (3) of the "Draft" be amended to: "There is objective evidence that there are major food and drug safety hazards in the supervision and management area, but they have not been discovered in time".

Original Chinese article:

http://www.cbcgdf.org/NewsShow/4854/13529.html

By / Niu Jingmei

https://www.paypal.me/CBCGDFChina

http://www.cbcgdf.org/English/ConfirmDonaTion/0.html