Communist Party of China made the strategic plan of "developing marine economy, protecting marine ecological environment and speeding up the construction of a powerful marine country", and took the construction of a powerful marine country as an organic component and an important task to promote Chinese-style modernization. Faced with the severe and complex marine and international situation, China, as a major maritime trade and shipping country, cracks down on marine-related illegal and criminal activities in accordance with the law and speeds up the construction of marine rule of law, which is an inevitable requirement for in-depth study and implementation of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, implementation of Xi Jinping's ecological civilization thought and Xi Jinping rule of law thought, and improvement of the foreign-related rule of law system. In July 2022 and February 2023, the Supreme People's Court, the Supreme People's Procuratorate and the China Maritime Police Bureau held symposiums in Fujian, Guangdong, Hainan and Zhejiang provinces to analyze and judge the current grim situation of sand-related crimes, summarize and exchange experiences and practices in handling sand-related criminal cases, and study and discuss the difficult problems in handling cases. The people's courts, people's procuratorates and maritime police agencies have reached a consensus on cracking down on crimes involving sea sand according to law and unifying the applicable standards of law.
The meeting pointed out that in recent years, the high incidence of illegal and criminal activities involving sea sand has threatened the safety of marine ecological environment, spawned the evil forces at sea, endangered the safety of construction projects, and affected the safety of navigation at sea, w hich has great social harmfulness. The meeting demanded that all departments should improve their political standing, keep in mind the "great power of the country", closely focus on the overall situation of the work of the Party and the state, and use the strictest system and the strictest rule of law to build a judicial barrier for law enforcement to safeguard the marine ecological environment and the safety of sea sand resources. The meeting emphasized that all departments should correctly understand and accurately apply the Criminal Law and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Questions Concerning the Application of Law in Criminal Cases of Illegal Mining and Destructive Mining (Law Interpretation No.25, 2016). The Supreme People's Court's Opinions on Punishing the Crime of Illegal Mining of Mineral Resources According to Law by Giving Full Play to the Judicial Function of Environmental Resources (Fa [2022] 19) and other provisions, adhere to the criminal policy of Combining Leniency with strictness, unify the judicial standards of law enforcement, and increase the punishment of crimes involving sea sand according to law. Effectively safeguard the marine ecological environment and mineral resources security. The summary is as follows.
1. On the application
of charges 1. Whoever excavates sea sand in the inland waters or territorial waters of the People's Republic of China without obtaining a sea area use right certificate for sea sand mining and without obtaining a mining license, which conforms to the provisions of Article 343, paragraph 1, of the Criminal Law and Articles 2 and 3 of the Interpretation of Illegal Mining, shall be convicted and punished for the crime of illegal mining.
For the acts specified in the preceding paragraph committed in the contiguous zone of the People's Republic of China, the exclusive economic zone, the continental shelf and other sea areas under the jurisdiction of the People's Republic of China, the cases in which criminal responsibility shall be investigated in accordance with the Criminal Law of the People's Republic of China shall be convicted and punished with reference to the provisions of the preceding paragraph.
2． Under any of the following circumstances, the owner or captain of a vessel that barges and transports sea sand shall be convicted and punished for the crime of illegal mining in accordance with the provisions of the first paragraph of Article 343 of the Criminal Law:
(1) conspiring with criminals who illegally mine sea sand in advance, instigating or driving a sand carrier to go to a designated sea area to barge and transport sea sand directly from a sand dredger;
(2) Those who do not conspire with criminals who illegally excavate sea sand in advance, but are employed by them to instruct or drive sand carriers to designated sea areas, and when illegal sand mining is still in progress, they know that they are illegally excavated sea sand, but still directly barge and transport sea sand from sand dredgers;
(3) Those who do not conspire with the criminals who illegally excavate sea sand in advance, nor are they employed by them, and when the illegal sand excavation is still in progress, they know that the sea sand is illegally excavated, temporarily agree with the criminals who illegally excavate sea sand on the time and place, and directly barge and transport the sea sand from the sand dredger.
In any of the following circumstances, the owner or captain of the vessel that barges and transports sea sand shall be convicted and punished for concealing or concealing the crime in accordance with the provisions of Article 312 of the Criminal Law:
(1) failing to conspire with the criminals who illegally excavate sea sand in advance, instigating or driving the sand carrier to the relevant sea area; After the illegal sand excavation has been completed, knowing that the sea sand is illegally excavated, he still directly barges and transports the sea sand from the sand dredger;
(2) conspires with the criminals who illegally purchase the sea sand in advance, instigates or drives the sand carrier to barge and transport the sea sand to the designated sea area;
(3) There is no evidence to prove that there is prior conspiracy or joint criminal intent between criminals who illegally excavate, transport or purchase sea sand, but after being employed by one of them, they instigate or drive sand carriers to designated sea areas, knowing that they are illegally excavated sea sand, they still barge and transport sea sand from other sand carriers.
2. Determination
of subjective intent 3. To judge whether the owner or captain of a ship that has barged and transported sea sand has criminal intent, a comprehensive analysis and judgment shall be made on the basis of evidence such as his position, professional experience, professional background, training experience, administrative penalties or criminal liability for similar acts, and in combination with his confession. In
practice, if one of the following circumstances occurs and the actor cannot give a reasonable explanation, it can generally be concluded that he "knows that it is illegally excavated sea sand", unless there is evidence to the contrary:
(1) intentionally closing the ship's automatic identification system, or there are multiple sets of ship's automatic identification system on the ship.
(2) intentionally detouring the normal route and wharf, lightering and transporting in concealed waters or at an obviously unreasonable concealed time, or communicating or connecting by means of secret signals, secret words, tokens, etc.;
(3) using a "three-no" ship, a ship with a false name, or an illegally converted ship, or intentionally covering up the ship's number to cover up the characteristics of the ship's hull;
(4) making false records of the ship's logbook or engine room log, or failing to declare or making false declarations when entering or leaving the port;
(5) Using relevant licenses, auction procedures, contracts and other legal documents and materials, or using false or forged documents and materials;
(6) Failing to issue a legal and valid certificate of the source of sea sand, or refusing to provide a certificate of the true source of sea sand;
(7) The transaction is conducted at a price obviously lower than market price;
(8) The remuneration paid, received or agreed upon is obviously unreasonable, or the bank account under the name of another person under control is used to receive and pay for the sea sand transaction;
(9) evading or resisting law enforcement inspection, or formulating a plan for evading inspection in advance;
(10) other circumstances sufficient to be identified.
4． Whoever, knowing that another person has committed the crime of illegally excavating, transporting or purchasing sea sand, still provides him with funds, sites, tools, technology, documents, certificates, procedures and other important convenient conditions or intermediary contacts, which have a substantial role in helping the crime, shall be punished for the crime of illegal mining or the joint crime of concealing or concealing the crime.
III. Treatment
of downstream behavior 5. It is determined that the illegal transportation, purchase, sale or other means of concealing or concealing the illegally excavated sea sand and its proceeds constitute the crime of concealing or concealing the proceeds of crime and the proceeds of crime, on the premise that the facts of the upstream illegal mining crime are established. If the upstream crime has not been adjudicated according to law, but it is verified to be true, it shall not affect the determination of the crime of concealing or concealing the proceeds of crime and the proceeds of crime. If the upstream illegal mining of sea sand fails to meet the "serious circumstances" standard of the crime of illegal mining, administrative penalties may be imposed on the downstream corresponding acts of concealment and concealment in accordance with laws and regulations such as the Marine Envi ronmental Protection Law, the Law on the Use and Management of Sea Areas and the Law on Administrative Penalties for Public Security.
6． Whoever knowingly transports, purchases, sells or otherwise conceals or conceals the illegally excavated sea sand and the proceeds generated therefrom, and has been subjected to administrative punishment for committing such acts within one year, and commits such acts again, shall be convicted and punished for the crime of concealing or concealing the proceeds of crime and the proceeds of crime in accordance with the provisions of Article 312 of the Criminal Law. If such acts have been committed many times without administrative punishment and should be prosecuted according to law, the amount of the proceeds of crime and the proceeds of crime shall be calculated accumulatively.
7． If the crime of concealing or concealing the proceeds of crime or the proceeds of crime is convicted and punished, attention should be paid to maintaining a balance of sentencing with the upstream illegal mining crime.
IV. Determination
of Liability of Labor Personnel 8. Article 11 of the Interpretation of Illegal Mining stipulates that persons employed to provide services shall not be punished as a crime except those who participate in profit sharing or receive high fixed wages, except those who have been punished for illegal mining or destructive mining. The understanding of "high fixed wage" in this article should not stay at the literal level of "high wage", but should be judged comprehensively according to the division of responsibilities and participation in the whole criminal activities. In
practice, attention should be paid to the level of economic and social development in the region, as well as the average wage level of workers provided by the mining industry. Generally speaking, those who receive or agree to receive fixed property income of more than twice the average wage of workers provided by the same type of mining, transportation and other industries in the province (autonomous region, municipality directly under the Central Government) in the previous year, including wages, bonuses, subsidies, material incentives, etc., can be recognized as "high fixed wages".
9． In case of any of the following circumstances, the provisions of Article 11 of the Interpretation of Illegal Mining that "generally shall not be punished as a crime" shall not apply:
(1) Those who know that others have committed the crime of illegal mining, transportation and purchase of sea sand, but still provide them with substantive assistance or important technical support such as mining, loading and unloading, transportation and sales for many times, and the circumstances are serious;
(2) Undertaking certain responsibilities of initiating, planning, manipulating, managing and coordinating in relevant criminal activities;
(3) Repeatedly evading inspection, or providing assistance for the criminal activities of illegal sea sand excavation to evade supervision or punishment by means of tipping off.
V. Determination
of the price of sea sand involved in the case 10. For the value of the sea sand involved in the case, if there is the amount of disposal of stolen goods, it is generally determined according to the amount of disposal of stolen goods; if there is no amount of disposal of stolen goods, it is difficult to verify the amount of disposal of stolen goods, or it is obviously unreasonable to determine according to the amount of disposal of stolen goods, it is determined according to the transaction price and quantity of the sea sand market. The cost expenditure incurred in the process of illegal excavation, transportation and storage of
sea sand shall not be deducted from the amount of stolen goods sold.
11． If the value of sea sand is difficult to determine, it shall be determined on the basis of the report issued by the price certification agency affiliated to the relevant department of the local government, or on the basis of the report issued by the competent departments of natural resources, water administration and marine affairs of the people's government at or above the provincial level, and in combination with other evidence.
12． The value of illegally mined sea sand shall generally be determined on the basis of the transaction price of the local sea sand market at the end of the crime or the average market price of the local sea sand during the period of illegal mining. If the criminal act has obvious time continuity, it may be based on the transaction price of the local sea sand market when the criminal act is committed in different time periods. If there is no sea sand market transaction price in the local county (city, district), it can refer to the sea sand market transaction price in the surrounding areas.
6. Disposal
of the ship and property involved in the case 13. For the ship involved in the case, the maritime police organ shall seal up and detain it in time according to law, and after the detention, it shall generally be kept by the maritime police organ itself, or under special circumstances, it may be temporarily kept by the ship owner or the captain.
14． In case of any of the following circumstances, it can generally be identified as "special tools used for crime" as stipulated in the second paragraph of Article 12 of the Interpretation of Illegal Mining, and shall be confiscated according to law:
(1) tools owned by criminals and specially used for the crime of illegal mining of sea sand;
(2) It is not registered for a long time or is a "three-nothing" ship or is attached to or registered under the name of another person, but it is actually a tool controlled by criminals and specially used for the crime of illegally excavating sea sand;
(3) The owner of a ship or machine, knowing that the criminal is dedicated to the crime of illegally excavating sea sand, leases or lends the ship or machine, which constitutes a joint crime or a related crime.
15． In any of the following circumstances, it may generally be deemed that the owner of the vessel has leased or lent the vessel knowing that it is used by others for illegal excavation of sea sand, except that reasonable explanations can be made or there is evidence to the contrary:
(1) without the approval of the relevant department, Without authorization, converting a vessel into a vessel that can be used for dredging or transporting sea sand, or disguising the vessel;
(2) consenting or acquiescing in a criminal to convert a vessel into a vessel that can be used for dredging or transporting sea sand, or disguising the vessel;
(3) Having been subjected to administrative punishment for leasing or lending a vessel for illegal excavation or transportation of sea sand, and leasing or lending the vessel to the same criminal;
(4) Refusing to provide true information about the actual user, or providing false information about the actual user;
(5) other circumstances sufficient to establish knowledge.
16． In order to evade the confiscation of ships specially used for crimes, or to evade administrative penalties for illegal excavation and transportation of sea sand within one year, criminals who illegally excavate and transport sea sand are investigated for criminal responsibility for such acts, they transfer the ownership of ships by means of fictitious sales contracts and oral agreements, but they have not done so. If the transfer price of the ship is not actually paid, the ship involved may be recognized as a "special tool for crime" according to law.
17． If the value of the ship involved in the case is too different from the amount involved in the case, and the certificate of the ship involved in the case is true and valid, the ownership is clear, and the certificate of the ship is consistent, it shall not be confiscated generally. In practice, the ship involved in the case should be dealt with according to law by considering the nature, circumstances, consequences, degree of social harm of the act and the performance of the perpetrator's confession and repentance.
18． If the owner of a ship, who is engaged in the illegal transportation of sea sand, knows that the illegal mining of sea sand has repeatedly committed the crime of illegal transportation of sea sand within one year, which constitutes a joint crime or a related crime, the ship involved in the case may be identified as "his own property used for the crime" as stipulated in Article 12, paragraph 2, of the Interpretation of Illegal Mining, and shall be confiscated according to law.
19． After fixing the evidence and retaining the samples, the marine police organ may auction the seized sea sand in advance according to law with the approval of the principal person in charge of the marine police organ at or above the county level, and supervise the whole process of the auction. The proceeds from the auction shall be kept for the time being and shall be dealt with according to law after the conclusion of the lawsuit.
For the facilities and equipment such as sand mining and transportation equipment on the ship involved in the case, the maritime police organ shall promptly seal up and seize them in the course of investigation, and the people's court shall, in principle, confiscate them according to law, or hand them over to the relevant competent authorities for dismantling.
7. Strengthening Cooperation and Supervision and Restriction
20. After the occurrence of a case, the maritime police organ, the people's procuratorate and the people's court at the place where the criminal suspect or defendant returns from the sea to land may exercise jurisdiction according to law. "Landing land" includes not only "active landing land" by criminal suspect, defendant or other means, but also "passive landing land" escorted back to land by law enforcement agencies such as maritime police agencies. The maritime police organ shall choose the landing place in accordance with the principle of landing nearby and facilitating investigation.
21． People's courts, people's procuratorates and maritime police organs at all levels should give full play to their functions in handling criminal cases involving sea sand and criminal incidental civil public interest litigation cases, divide their responsibilities, cooperate with each other, restrict each other and effectively form a joint strike force. Marine police agencies at all levels should strengthen collusion and research, pay attention to thorough investigation, collect, fix and improve relevant evidence according to law, improve the quality of handling cases, and submit for approval of arrest and transfer for examination and prosecution according to law. People's procuratorates at all levels should fully perform their duties of legal supervision according to law, and carry out high-quality and effective examination and approval of arrests and prosecutions in criminal cases involving sea sand. If necessary, the People's Procuratorate may intervene in the investigation in advance to guide the maritime police agencies to collect and fix evidence in criminal cases and criminal incidental civil public interest litigation cases in an all-round way. When trying criminal cases involving sea sand, people's courts at all levels should give full play to their judicial functions, implement the criminal policy of tempering justice with mercy, apply the law accurately and ensure that the punishment is appropriate.
22． People's courts, people's procuratorates and maritime police organs at all levels should establish and improve such systems and mechanisms as daily liaison, information notification, case consultation and case research and judgment, and timely study new situations and problems arising from illegal and criminal activities involving sea sand, so as to solve major difficult and complex problems and improve the effectiveness of case handling.
23． When handling criminal cases involving sea sand, people's courts, people's procuratorates and maritime police organs at all levels should carefully analyze and judge the law and causes of crimes involving sea sand in the light of their duties, and make overall use of such methods as making and issuing judici al suggestions, procuratorial suggestions, conducting procuratorial public interest litigation, publicizing the rule of law, and interpreting cases. We should build a comprehensive provention and control system with punishment and prevention, prevention first and governance as the foundation; while focusing on combating crimes, we should actively promote the governance of the source of prosecution and comprehensive management of crimes involving sea sand, cut off the chain of interests and eradicate the breeding soil of crimes.
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