Recently, the Supreme People's Procuratorate issued the second batch of typical cases of public interest litigation to supervise and rectify illegal mining, guiding procuratorial organs at all levels to continue to intensify their efforts in handling cases, improve the quality and effectiveness of handling cases, strengthen cooperation with criminal procuratorates and relevant administrative departments, and form a deterrent situation against crimes in this field through joint performance of their duties. The typical cases
released this time include 10 cases of civil public interest litigation of Nanjing People's Procuratorate of Jiangsu Province against Wang Mou-mou for illegal mining and ecological damage. Illegal mining of mineral resources is mainly manifested in unlicensed mining, cross-border mining, exploration instead of mining, overdue mining and so on, with various and overlapping illegal forms. The typical cases released this time also involve the supervision and rectification of various illegal mining activities. For example, the procuratorial organ of Pingxiang City, Jiangxi Province, urges the administrative organs to perform their duties in accordance with the law by instituting administrative public interest litigation in response to the administrative organs'negligence in performing their duties for the illegal mining of mineral resources beyond the approved scope. Cases in the field of
illegal mining often involve a wide range, a long time span, a large number of illegal acts and constitute criminal offences, many cases also involve evil forces, most of the case clues come from criminal cases, a case often involves many defendants. These typical cases also reflect that the procuratorial organs, through handling a series of cases and adopting various supervision methods, give full play to the different functional advantages of administrative public interest litigation and civil public interest litigation, and form a joint force with criminal procuratorial departments, public security organs and natural resources authorities to combat illegal mining, fully reflecting the role of procuratorial integration in performing their duties.
In recent years, illegal sand mining cases handled by procuratorial organs account for about 46% of the cases in the field of illegal mining, and such illegal acts are quite common, which are also reflected in these cases. In addition, criminal incidental civil public interest litigation cases account for a large proportion. According to the data, the proportion of public interest litigation cases in this field is more than one third. The person in charge of the Eighth Procuratorial Office of the Supreme People's Procuratorate introduced that this is related to the characteristics of cases in the field of illegal mining. Most of the cases in this field involve criminal offences. Most of the case clues are transferred by public security organs or criminal procuratorial departments. The large proportion of criminal incidental civil public interest litigation cases is also in line with the actual situation. The proportion of criminal incidental civil cases in the typical cases released this time is 30%.
The person in charge said that in order to standardize the process of handling cases in the field of illegal mining and further improve the quality and effectiveness of handling cases, the Supreme Procuratorate will issue guidelines for supervising and rectifying public interest litigation cases in the field of illegal mining in the near future, and strengthen training and research in conjunction with the issuance of guidelines for handling cases.
Contents
1. Nanjing People's Procuratorate of Jiangsu Province v. Wang Mou's Civil Public Interest Litigation
for Illegal Mining and Ecological Damage 2. Procuratorial Organs of Pingxiang City, Jiangxi Province Supervise and Rectify Administrative Public Interest Litigation Cases of
Illegal Mining 3. The People's Procuratorate of Shexian County, Hebei Province, urges the rectification of illegal mining administrative public interest litigation cases
. The First Branch of the People's Procuratorate of Chongqing Municipality Supervise and Urge the Control of Flood Sediment Sand and the Reclamation of Disaster-damaged Land Administrative Public Interest Litigation Case
5. The People's Procuratorate of Shengzhou City, Zhejiang Province, urges the administrative public interest litigation
for the protection of mineral resources. The People's Procuratorate of Xinhua County, Hunan Province Supervised the Administrative Public Interest Litigation
for the Protection of Mineral Resources 7. People's Procuratorate of Shizhong District, Jinan City, Shandong Province v. Zuo and Others for Illegal Mining Criminal Incidental Civil Public Interest Litigation
8. Beijing Mentougou District People's Procuratorate v. Gao Mou-mou, Wang Mou-jia and Others Illegal Mining Criminal Incidental Civil Public Interest Litigation
9. The People's Procuratorate of Wuhu Economic and Technological Development Zone of Anhui Province v. Peng Mou-mou and other 55 people for illegal mining criminal incidental civil public interest litigation
10. The People's Procuratorate of Fangcheng District, Fangchenggang City, Guangxi Zhuang Autonomous Region v. Hu Mou-mou and Others for Illegal Sand Mining Criminal Incidental Civil Public Interest Litigation Series
1. Nanjing People's Procuratorate of Jiangsu Province v. Wang Mou-mou Illegal Mining Ecological Damage Civil Public Interest Litigation Case
[Key words]
Civil Public Interest Litigation Illegal Mining Biodiversity Synchronous Restoration Appraisal and expert opinions
[gist]
The procuratorial organs carry out civil public interest litigation and related criminal cases in coordination, and take the compensation situation of civil public interest litigation cases as a reference for sentencing in criminal cases. With the help of experts, the appraisal opinions on ecological environment damage can be demonstrated. In the case of clear facts of damage but unable to quantify the assessment, the procuratorial organs can put forward discretionary opinions on the damage results to the court according to the expert opinions.
[Basic facts]
Nanjing Laoshan Forest Farm is located in Pukou District, Nanjing City, Jiangsu Province, with the Yangtze River in the south and Chuhe River in the north. It is rich in biological resources and has important ecological value. From 2015 to 2016, without obtaining a mining license, Wang Moumou illegally exploited marl, shale and other mineral resources 78147 tons in Laoshan Forest Farm by using gun head machine, excavator and other machinery. From 2017 to 2018, Wang Moumou used the construction of Beiyanshan Avenue in Pukou District of Nanjing City to illegally mine limestone, marl, shale and other mineral resources 89368 outside the construction red line.
The People's Procuratorate of Pukou District, Nanjing City, Jiangsu Province (hereinafter referred to as Pukou District Court) found clues to the case in handling the criminal case of Wang Mou-mou suspected of illegal mining, and immediately filed the case for examination. Later, considering the great social impact of the case, the clues were transferred to the Nanjing People's Procuratorate of Jiangsu Province (hereinafter referred to as the Nanjing People's Procuratorate). After filing the case on October 24, 2019, the
Nanjing Municipal Court entrusted the appraisal body to assess the damage caused by illegal mining to the ecological environment, and in March 2020, the appraisal body issued an appraisal report. The damage of ecological environment includes three parts: the economic loss of ecological resources, the economic loss of ecosystem function, and the loss of biodiversity value during the restoration period. The Nanjing Academy invited experts in the field of biodiversity to demonstrate the appraisal opinions, and the experts at the meeting agreed that the report was more scientific, but did not evaluate the impact of wildlife habitats. The Nanjing Municipal Court then entrusted the appraisal institution to conduct a supplementary evaluation. In May of the same year, the appraisal agency issued a supplementary opinion to increase the assessment of the loss of ecological value of birds, believing that the fact that illegal mining caused damage to mammal habitats existed, but it could not be quantified because there was no relevant research basis. Nanjing Municipal Court considers that the damage exists objectively, that is, considering the vegetation coverage, location and the impact of human activities on the region, the damage is quantified according to 1% of the total loss of other ecological environment as appropriate. On September 10,
2020, the Nanjing Municipal Court filed a civil public interest lawsuit with the Nanjing Intermediate People's Court in accordance with the relevant provisions of the Environmental Protection Law of the People's Republic of China, the Tort Liability Law of the People's Republic of China and the Civil Procedure Law of the People's Republic of China. Request the court to order: Wang Mou-mou to compensate the mine and vegetation ecological damage restoration costs totaling 1893112 yuan, and to pay the damage assessment business costs 400000 yuan. During the field investigation, the procuratorial organ learned that the territorial government had carried out the restoration work in the two places involved in the case according to the requirements of the ecological restoration work of the abandoned open-pit mines in the Yangtze River Economic Zone of the Ministry of Natural Resources. Considering that the restoration of the ecological environment damage in this case could be integrated with the restoration work already carried out, the Nanjing Municipal Court put forward the specific restoration plan in the court hearing. It is suggested that the court directly clarify the use of ecological environment compensation for two restoration projects in its judgment. On December 4,
2020, the court heard the case live on the China Open Court Trial Network, and the court publicly heard and pronounced a judgment in court, supporting all the litigation requests of the procuratorial organs, and decided that Wang Mou-mou should be liable for the loss of ecological resources caused by illegal mining 1893112 yuan (already paid). The specific use of the compensation is: 1498436 yuan for the two restoration projects, and 394676 yuan for the restoration and protection of biodiversity in the two places. On December 20 of the same year, the People's Court of Xuanwu District of Nanjing made a judgment on the related criminal cases, confirming Wang's attitude of actively restoring the ecology and the situation of compensation, and taking it as a circumstance of lighter sentencing.
As of June 2022, the ecological restoration of the two illegal mining sites involved in the case has been completed; after expert demonstration, the restoration of biodiversity is also in progress.
[Typical significance]
The purpose of environmental civil public interest litigation is not only to require ecological destroyers to bear tort liability, but also to make them realize the harm of their actions and guide them to take the initiative to repair the damaged ecological environment. Civil cases are judged before criminal cases, and the active restoration of damaged ecology by offenders is regarded as the sentencing circumstances of criminal judgments, which embodies the concept of restorative justice. In handling environmental civil public interest litigation cases,
procuratorial organs should adhere to the integrated protection and systematic management of mountains, rivers, forests, fields, lakes, grass and sand. In addition to mineral resources and soil erosion, the ecological environment damage caused by illegal mining activities should also take into account the restoration of all-round ecological elements and biodiversity such as forest and grass, biological resources and their habitats in the mining area. When the loss is clear in some aspects but cannot be calculated, the procuratorial organ may refer to expert opinions and make a lawsuit request according to the degree of damage.
2． The Procuratorial Organs of Pingxiang City, Jiangxi Province Supervise and Rectify Illegal Mining Administrative Public Interest Litigation Cases
[Key Words]
Administrative Public Interest Litigation Mineral Resources Protection Beyond the Scope of Mining Promotion If the
administrative organ fails to fully perform its supervisory duties over the illegal acts of mining beyond the approved scope and destroying the ecology, the procuratorial organ may urge the administrative organ to rectify through administrative public interest litigation to make up for the loopholes in the administrative supervision of mineral resources protection.
[Basic facts]
From 2016 to 2020, the natural resources management department of Shangli County, Jiangxi Province, investigated and dealt with 11 cases of illegal mining beyond the approved scope. In all cases, enterprises were not ordered to compensate for the loss of mineral resources in accordance with the law, the illegal income of enterprises was not accounted for in accordance with the law, and the enterprises were not urged to restore and control the geological and ecological environment in accordance with the law, and most of the cases had the situation of reducing the range of fines, resulting in the loss of more than 30 million yuan of state fines, and the geological environment of more than 700 mu of mines was not restored.
[Investigation and Supervision of Performance of Duties]
In June 2020, the People's Procuratorate of Pingxiang City, Jiangxi Province (hereinafter referred to as Pingxiang City Procuratorate) arranged through clues according to the feedback from the environmental protection inspectors of Jiangxi Province and the anti-black and anti-evil inspectors of Jiangxi Province. It was found that Shangli County Natural Resources and Planning Bureau (hereinafter referred to as Shangli County Resources Planning Bureau) had the problem of inadequate performance in investigating and dealing with 11 enterprises such as a quarry in Shangli County which exceeded the approved mining area. Considering the large number of mining enterprises and the large amount of money involved in the case, which may involve the problem of black and evil forces and umbrellas, and the strong reaction of the people in the jurisdiction to the problem of illegal mining, Pingxiang Municipal Court decided to promote the case to Shangli County Capital Planning Bureau for investigation on September 15, 2020. After
filing the case, Pingxiang Municipal Court collected evidence from Shangli County Capital Regulation Bureau and tax authorities on administrative law enforcement files and the issuance of value-added tax invoices during the period of illegal mining by the enterprises involved. The investigation found that in the process of handling 11 cases, Shangli County Bureau of Resources Planning had the following improper performance of duties: failing to order the enterprises involved to compensate for the loss of mineral resources in accordance with the relevant provisions of the Mineral Resources Law of the People's Republic of China and the Regulations on the Management of Mineral Resources of Jiangxi Province; Failure to verify the actual selling price of illegally mined mineral products in accordance with the provisions of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Questions Concerning the Application of Law in Handling Criminal Cases of Illegal Mining and Destructive Mining and the Regulations for the Investigation and Punishment of Illegal Acts of Land and Resources of the former Ministry of Land and Resources, and directly adopt price certification or calculate illegal income according to the price stated by the owner; According to the Regulations of Jiangxi Province on the Management of Mineral Resources and the Implementation Standards for Discretionary Administrative Penalty of Land and Resources in Jiangxi Province, some cases were fined below the statutory range of fines; the enterprises involved were not supervised to restore and control the mine geological environment in accordance with the provisions of the Regulations on the Protection of Mine Geological Environment. On November 19,
2020, Pingxiang Municipal Court issued a procuratorial proposal to Shangli County Capital Regulation Bureau, requesting it to perform its statutory duties according to law, impose administrative penalties on the enterprises involved, order the enterprises involved to compensate for the losses of mineral resources, and repair and control the mines. After receiving the procuratorial suggestions, Shangli County Capital Planning Bureau only recognized that some cases were not fined within the range of statutory fines, issued a notice of supplementary payment of fines according to law, and urged the enterprises involved to draw up a fund for mine geo logical environment control and restoration, and to reclaim and green the mining areas within a time limit. However, there are objections to whether the enterprises involved should be ordered to compensate for the loss of mineral resources and on what basis, and on what basis to calculate the illegal income. In this regard, Pingxiang Municipal Court has communicated and urged many times through active visits, special meetings, chambers of commerce and public hearings, but Shangli County Capital Planning Bureau still does not adopt the relevant requirements of procuratorial suggestions.
[Litigation Process]
In order to reduce the interference in handling cases and ensure the smooth progress of litigation, Pingxiang Municipal Court appointed Luxi County People's Procuratorate (hereinafter referred to as Luxi County Court) to file a lawsuit against the case. On September 30, 2021, Luxi County Court filed an administrative public interest lawsuit with the People's Court of Anyuan District, Pingxiang City, in accordance with the provisions of centralized jurisdiction of administrative litigation cases by judicial organs, requesting confirmation that Shangli County Capital Regulation Bureau had not fully fulfilled its supervisory duties in 11 illegal mining cases; It was ordered to make a decision to order compensation according to law, to recalculate according to law, to make a decision on fines and confiscations, and to supervise the completion of geological environment restoration in the mines involved. During the
court hearing, Shangli County Capital Planning Bureau carried out rectification according to the procuratorial suggestions, requiring enterprises to compensate for new losses of 1.4715 million yuan, and imposing new fines on enterprises 2397.On May 27, 2022, Luxi County Court held a public hearing, inviting the hearing officer to conduct on-site investigation and evaluation of the implementation of the rectification. Hearing personnel agreed that Shangli County Capital Planning Bureau carried out partial rectification during the litigation period, and re-imposed administrative penalties on 11 illegal mining cases, of which 8 mines have completed ecological restoration, and the other 3 closed mines have not yet completed restoration due to the need for pit closure treatment. On June 28, 2022, Luxi County Court comprehensively referred to the hearing opinions, changed the litigation request according to law, and appealed to Shangli County Capital Planning Bureau to continue to perform its supervisory duties on three mines that had not yet completed ecological restoration. On June 29, the court ruled in support of the prosecution's claim. After the
judgment came into effect, Shangli County Capital Planning Bureau strictly urged mining enterprises to conscientiously carry out mine geological environment restoration work in accordance with the judgment. At present, three mines involved in the case have been reclaimed and greened.
[Typical Significance]
For major and complex cases within their jurisdiction, the people's procuratorates at or above the municipal level with districts may be promoted to jurisdiction. If the administrative organ has always had differences on the illegal situation and is unable to reach a consensus, it may appeal to confirm that the administrative act is illegal. If the administrative organ makes partial rectification during the court hearing, the procuratorial organ may evaluate the rectification through public hearing, and if it meets the requirements, it may withdraw the prosecution or change the litigation request according to law. If the administrative organs have not yet been rectified, they should continue to urge the administrative organs to perform their duties according to law by means of litigation.
3． The People's Procuratorate of Shexian County, Hebei Province Supervise and Rectify Illegal Mining Administrative Public Interest Litigation Cases
[Key Words]
Administrative Public Interest Litigation Illegal Mining Illegal Land Occupation and Factory Construction Supervise and Fully Perform Their Duties When the
procuratorial organs urge the administrative organs to perform their duties, they hold consultations and initiate administrative public interest litigation in view of the decentralization of powers and responsibilities after the reform of comprehensive administrative law enforcement. To urge the administrative organs to correctly understand the "comprehensive administrative law enforcement reform" and related laws and regulations, a number of administrative law enforcement powers are delegated to township or street offices, and the administrative organs still have the power to supervise the industry, clarify their statutory responsibilities, and prevent the emergence of a "vacuum" zone without supervision after the decentralization of law enforcement powers.
[Basic facts of the case]
In 2017, Hebei Shexian A Trading Co., Ltd. (Hereinafter referred to as A Company) illegally occupied an area of about 2000 square meters to build a gravel crushing plant without obtaining the approval procedures for land use rights, and stole quartz stones from the surrounding mountains for production and processing, making a profit of more than 60000 yuan. Shexian Natural Resources and Planning Bureau (hereinafter referred to as the County Self-Planning Bureau) and Liaocheng Urban and Rural People's Government failed to perform their duties in accordance with the law, resulting in damage to national and social public interests.
[Investigation and supervision of performance of duties]
In March 2022, the People's Procuratorate of Shexian County, Hebei Province (hereinafter referred to as the People's Procuratorate of Shexian County) received the clues of the report, and the preliminary investigation found that since 2017, Company A has illegally occupied land and built factories and illegally mined ores without obtaining land use procedures. On March 17, the Shexian Court investigated the cases filed by the County Self-Planning Bureau and the Liaocheng People's Government respectively.
In order to clarify the supervision responsibilities of administrative organs and township governments after the decentralization of administrative law enforcement power, on March 18, 2022, the Shexian Court invited the county self-regulation Bureau and the Liaocheng People's Government of Shexian County to hold a consultation meeting, and the participants discussed the controversial focus of industry supervision power, township supervision power and administrative law enforcement power. In accordance with the relevant provisions of the Mineral Resources Law of the People's Republic of China, the Detailed Rules for the Implementation of the Mineral Resources Law of the People's Republic of China, the Regulations on Land Management of Hebei Province, and the Interim Measures for the Supervision and Administration of Mineral Resources of the competent departments of land and resources at the municipal (prefectural) and county (city) levels, the Shexian Court has formulated the regulations. Referring to the provisions of the Notice on Decentralization of Administrative Penalties in the Field of Natural Resources issued by the Office of the People's Government of Shexian County, the statutory responsibilities of the relevant departments are further clarified through interpretation and reasoning, so that the county self-regulation Bureau realizes that as the supervision department of land and mineral resources, it is responsible for the supervision of illegal land occupation and illegal mining; To make the township government realize that it has the power of administrative punishment for illegal land occupation and illegal mining. It also issued procuratorial suggestions to the county self-regulation Bureau and the people's government of Liaocheng and rural areas on the spot, suggesting that the county self-regulation Bureau should perform its duties of industry supervision, and that the people's government of Liaocheng and rural areas should perform the power of administrative punishment according to law, order the offenders to stop their illegal activities, restore the land to its original state, and carry out ecological restoration of damaged forest land. After receiving the procuratorial suggestions, the county self-planning Bureau and the people's government of Liaocheng Town immediately rectified, demolished the illegally occupied factory buildings according to law, confiscated the illegal mining income 61296 of the offenders, and imposed a fine of 12259. On May 16, 2022, the county self-
planning Bureau and the people's government of Liaocheng Town replied to the procuratorial organs in writing that the relevant responsible persons had been punished and the mining pits had been landfilled. The follow-up supervision
of Shexian Court found that although the sand and gravel crushing plant involved had been demolished, there were still some abandoned materials piled up at will, the backfilling of mining pits was shallow, the land was not completely restored to its original state, and the damaged forest land ecology was not fully restored.
[Litigation Process]
On June 15, 2022, the Shexian People's Court filed an administrative public interest lawsuit against the County Self-Regulation Bureau and the Liaocheng People's Government to the Shexian People's Court in accordance with the law, requesting that the two defendants be ordered to fully perform their duties in accordance with the law. After the prosecution, the Liaocheng People's Government, with the full cooperation and guidance of the county self-regulation Bureau, formulated an ecological restoration plan, urged Company A to backfill the mining pit and replant the destroyed forest land, planting 5700 trees and replanting 17. In view of the fact that the two administrative organs have fully performed their duties and all the litigation requests have been realized, on August 19, the county court applied to the court for withdrawal of the prosecution. On August 30, the court decided to allow the withdrawal of the lawsuit.
The County Natural Resources Bureau took this case as an opportunity to carry out special renovation activities for illegal mining throughout the county, replanting and ecological restoration of abandoned mines in the county, and the ecological environment of mining areas has been significantly improved.
[Typical significance]
After the reform of administrative organs, the power of administrative law enforcement has been extended to the grass-roots level, and many administrative law enforcement powers have been delegated to township or street offices, which has effectively solved the problem of "visible, uncontrollable" law enforcement supervision at the grass-roots level, but some administrative organs have also produced the wrong idea that the power of law enforcement can be "ignored" after decentralization. Through consultation, issuing procuratorial suggestions and instituting administrative public interest litigation, procuratorial organs urge administrative organs to correctly understand and apply laws and regulations, urge them to perform their duties in an all-round way according to law, effectively resolve governance problems such as the overlapping of industry supervision power, township supervision power and administrative law enforcement power, and contribute procuratorial wisdom to enhance social governance capacity.
4． The First Branch of the People's Procuratorate of Chongqing Municipality Supervise and Urge the Control of Flood-Deposited Sand and the Reclamation of Damaged Land Administrative Public Interest Litigation Case
[Key Words]
Administrative Public Interest Litigation Pre-litigation Procedure Flood-Deposited Sand Supervision Reclamation of Damaged Land Grass-roots social governance
[gist]
The procuratorial organs have actively explored new issues of resource protection, such as the supervision of flood sediment sand and the management of disaster-damaged land. By handling cases and combining with the actual situation of grass-roots governance, they have clarified the main body of flood sediment sand supervision and urged it to perform its duties according to law, effectively protecting state-owned natural resources.
[Basic facts of the case]
From August 17 to 20, 2020, affected by heavy rainfall and upstream inflow, the coastline and nearly 1000 mu of land in Taihe Town, Hechuan District, Chongqing, along the Fujiang River, a tributary of the Jialing River, were submerged. After the flood receded, a large amount of river sand was deposited on some riverbanks and land surfaces along the river, and about 1.3 million tons of river sand were deposited on the land and riverbanks in the vegetable base of Fujin Village. Local villagers, land lessees and other social entities privately excavated and sold flood sediment sand, resulting in illegal occupation of flood sediment sand resources, and further destruction of cultivated land due to artificial sand mining.
[Investigation and Supervision of Performance of Duties]
After receiving the clue that illegal sand mining in the Yangtze River destroys national resources and ecological environment from the superior procuratorate, After preliminary investigation, the First Branch of Chongqing People's Procuratorate (hereinafter referred to as the First Branch of Chongqing) and the People's Procuratorate of Hechuan District of Chongqing found that there was illegal excavation of flood sediment sand in Taihe Town, Hechuan District of Chongqing, and the First Branch of Chongqing filed an administrative public interest lawsuit on July 20, 2021.
According to the investigation, the land covered by flood deposited sand along the Fujiang River in Fujin Village, Taihe Town, Hechuan District, Chongqing is all cultivated land. As a result of the "8 · 17" flood in 2020, the area of damaged land reached 474. Most of the sedimentary sand covered on the land has been excavated and sold privately by local villagers and other social entities on the grounds of spontaneous clearance and restoration of farming conditions, resulting in pits and gullies 67 meters deep on the surface. According to the field survey and survey opinions issued by the ecological environment and resources experts, there are obvious traces of human disturbance in the plot, and the removal of sand and gravel has caused great changes in the topography and landform of the plot, which has increased the difficulty of subsequent reclamation, may cause collapse and damage to the surrounding cultivated land, and affect the soil structure and texture after subsequent reclamation.
In terms of administrative supervision, the local water conservancy department believes that the flood sediment sand is not within the scope of river management, so it is not within the scope of supervision of the water conservancy department; the planning and natural resources department believes that the flood sediment sand is not included in the catalogue of mineral resources, whether it is mineral resources or other natural resources is doubtful, and the basis for intervention in supervision is insufficient; The public security organs believe that it is difficult to deal with the attack because of the difficulty in defining the nature of resources and the nature of behavior. Therefore, the territorial administrative organs have not carried out effective administrative supervision. Based on the natural resource attributes and relevant laws and regulations, the First Branch of
Chongqing Municipality examined and determined that the flood-deposited sand was formed by the accumulation of flood, which had similar characteristics and economic use value with river sand, and belonged to state-owned natural resources; the disaster-damaged land was originally cultivated land, which was being further destroyed by human beings. The Department of Planning and Natural Resources is responsible for the protection of both natural resources and cultivated land. On August 27, 2021, the First Branch of Chongqing issued a pre-litigation procuratorial proposal to Hechuan District Planning and Natural Resources Bureau, demanding that full performance of duties be carried out in accordance with the law, timely protection measures be taken for land damaged by floods, and timely organization and implementation of land remediation and reclamation work.
Because the renovation project is huge and complex, the treatment is difficult and the cycle is long, and the flood season and other reasons need to be carried out in stages. On October 26, 2021, May 23, 2022 and January 13, 2023, the Planning and Natural Resources Bureau of Hechuan District of Chongqing responded to the rectification in writing three times in accordance with the rectification plan and steps. The First Branch of
Chongqing has carried out many reviews and found that the sand deposited by floods has been effectively supervised, the situation of private mining has been eliminated, and the utilization of resources has been managed by the state-owned platform company. Promoted by this case, the relevant functional departments have established the management mechanism of natural resources assets in Hechuan District and the management system of flood sediment sand in Chongqing, which effectively protects the national and social public interests.
[Typical Significance]
This case has successfully explored new issues of grass-roots governance related to agriculture and resources, such as the supervision of flood sediment sand and the management of disaster-damaged land, in order to clarify the state-owned natural resources attributes of flood sediment sand, and to promote the relevant administrative departments from "absence" to "replacement" through public interest litigation. It has explored and established a management mechanism for the owners of natural resources owned by the whole people with demonstration effect when there is no regulatory body, and actively promoted the incorporation of disaster-damaged land protection into local legislative procedures.
5． The People's Procuratorate of Shengzhou City, Zhejiang Province, urges the administrative public interest litigation case
for the protection of mineral resources [key words]
the legal supervision model
of illegal mining big data in the pre-litigation procedure of administrative public interest litigation [gist]
. Through analysis, research and judgment, we should create a big data legal supervision model, focus on solving administrative law enforcement problems such as the difficulty of fixing the number of illegal mining and the concealment of the location of stolen goods, integrate the procuratorial function of "public interest litigation + criminal", establish a long-term mechanism with multiple departments, and promote the formation of a strong joint force of digital "intellectual governance".
[Basic facts of the case]
In July 2021, Wu and others opened a sand and gravel washing and screening yard in the original brick yard of Hugongmiao Natural Village, Santang Village, Pukou Street, Shengzhou City, Zhejiang Province. From September 30 to December 30, Wu and others illegally exploited the sand and gravel resources of Taohuadu Block in Tangtouxi Village, Shengzhou City, without approval, and sold them to the outside world after washing and screening.
[Investigation and supervision of performance]
At the beginning of 2022, Shengzhou People's Procuratorate (hereinafter referred to as "Shengzhou Procuratorate") organized special supervision activities in the field of sand and gravel resources, and arranged the clues of illegal mining cases reflected by Pukou Street staff in Shengzhou City. After investigation, it was found that because the Taohuadu plot involved in the case was a depression along the Yangtze River, illegal mining personnel took the way of digging high-quality rough sand first and then filling in the dregs to steal mineral resources, which was highly concealed and difficult to crack down on.
To this end, Shengzhou Municipal Court has set up a task force to develop a supervision model for illegal mining (hereinafter referred to as "supervision model") in accordance with the relevant provisions of the "Measures for Dynamic Supervision and Management of Road Transport Vehicles", which uses the total mass of heavy-duty trucks transporting mineral resources generally exceeding 12 tons, and should install and operate satellite positioning devices normally. By visually fitting the trajectory of the vehicles involved, the real path of illegal outward transportation of mineral resources is restored, the total number of vehicles illegally transported out of mineral resources is accurately calculated, and the total amount of illegal mining is estimated. According to the analysis of the supervision model, in the case of illegal mining in Wu, a total of 491 vehicles were illegally transported to a sand and gravel washing and screening yard in Santang Village, Tongjie Street, resulting in a serious loss of national mineral resources. During the research and development of the
model, Shengzhou Natural Resources and Planning Bureau (hereinafter referred to as the "Self-Regulation Bureau") filed an investigation on Wu's illegal mining activities on February 11, 2022, and imposed administrative penalties on March 7 of the same year, which determined that Wu had illegally mined 140 vehicles of rough sand from Taohuadu plot in Tangtouxi Village, Pukou Street, and that Wu had not been involved in the investigation. It shall be ordered to stop illegal mining activities, confiscate the illegal income of RMB yuan 58800, and impose a fine of RMB yuan 11760.
The task force immediately obtained all the case files from the Self-Regulation Bureau, and found that the facts identified by the Self-Regulation Bureau as administrative penalties were inconsistent with the objective facts: first, the number of illegal gross sand trucks identified was only 140, which was less than 491 identified by the big data model; second, the weight of the bicycles illegally transported from Taohuadu involved in the case was less; Third, there is the possibility of substituting punishment for punishment.On April 1,
2022, Shengzhou Municipal People's Court filed an administrative public interest lawsuit. According to the facts ascertained by the investigation, on May 7, it issued a pre-prosecution procuratorial suggestion to the Self-Regulation Bureau, suggesting that it should fully investigate the illegal facts of the persons involved in the case according to law and protect the national mineral resources; if suspected of criminal offences, it should transfer the criminal clues to the public security organs in time. On July 6, the self-regulation Bureau replied in writing that the supervision model analyzed and counted the number of vehicles illegally transporting rough sand out of the land involved, which basically coincided with the time and number of times recorded in the transport account seized on the spot, and could prove that the contents recorded in the transport account were objective and true. It was re-verified that the value of illegal mining of mineral resources by Wu and others amounted to more than 620,000 yuan, and the illegal and criminal clues were transferred to the public security organs according to law.
In the process of handling the case, the public interest litigation department of Shengzhou Municipal Court handed over the clues of criminal cases of illegal mining to the criminal procuratorial department of Shengzhou Municipal Court in time, and transferred the clues of suspected violations of law and discipline by state functionaries found in the investigation to the Municipal Discipline Commission. Taking this case as an opportunity
, Shengzhou Municipal Court jointly issued the Opinions on Digital "Intelligent Governance" of Illegal Mining with the Municipal Public Security Bureau, the Municipal Transportation Bureau and the Self-Regulation Bureau to clarify the responsibilities of the departments, realize data collaboration and model sharing, solve the regulatory problems in the field of illegal mining, and form a long-term regulatory mechanism. The supervision model has been applied to handle many cases of illegal mining, and the value of state-owned mineral resources has been recovered by more than 3.5 million yuan.
[Typical Significance]
In view of the administrative law enforcement and criminal justice problems with strong concealment and great difficulty in cracking down on illegal mining activities, the procuratorial organs have developed a big data supervision model through big data enabling legal supervision and the use of vehicle trajectory data and other information. Digital technology should be applied to clue collection, analysis and judgment, investigation and evidence collection, and joint administrative organs should break down data barriers, realize data collaboration and model sharing, promote the establishment of long-term mechanism by multi-departments, and accelerate the realization of digital "intelligent governance" in the field of illegal mining.
6． The People's Procuratorate of Xinhua County, Hunan Province Urges the Protection of Mineral Resources Administrative Public Interest Litigation Case
[Key Words]
Administrative Public Interest Litigation Pre-litigation Procedure Criminal Incidental Civil Public Interest Litigation Illegal Exploitation of Shale New Media Clues The procuratorial
organs find clues to cases through new media such as tremolo short videos, use procuratorial suggestions of pre-litigation and social governance, urge administrative organs to fully perform their duties, and investigate the criminal and civil liabilities of relevant responsible persons according to law. The procuratorial proposals will be translated into proposals of the CPPCC to promote the special rectification of the industry.
[Basic facts of the case]
Yang Moumou registered and established a professional cattle raising cooperative in Xinhua County on October 12, 2016. Since July 2020, in the name of building a pig farm in Shizaoling Mountain Farm, Sangzi Town, Xinhua County, Hunan Province, Yang Moumou has successively gone through relevant formalities in Sangzi Town People's Government, County Development and Reform Bureau, County Forestry Bureau and County Health and Environment Bureau, but has not obtained a mining license. Yang Moumou started construction in October 2020, and Liu Moumou and Fu Moumou invested in April 2021. Around June 24, 2021, Yang Mou-mou and others excavated shale (commonly known as "black soil") at the construction site. Because Yang Mou-mou had been administratively punished for stealing shale, they discussed with Liu Mou-mou and Fu Mou-mou and decided to report to the government for centralized disposal of the excavated shale. Yang Mou-mou reported to the Natural Resources Bureau of Xinhua County requesting permission to find an open space to place shale on the site for disposal. After the staff of the Natural Resources Bureau of Xinhua County and the People's Government of Sangzi Town approved the report, Yang Mou-mou and others continued to excavate shale in the name of land leveling until they were ordered to stop work on July 22, 2021. On July 16,
2021, the Natural Resources Bureau of Xinhua County confirmed the 8064 excavated by Yang Mou-mou and others by the Xinhua County Price Certification Center. Xinhua County Non-tax Revenue Administration Bureau (the former affiliated institution of the County Finance Bureau) and the Office of the Leading Group of the Special Work on Centralized Regulation of Illegal Mining and Damage to the Ecological Environment (hereinafter referred to as Xinhua County Regulation Office) organized the auction of the shale. Cao Mou-mou, at the behest of Liu Mou-mou, sold more than 8000 tons of shale by Yang Mou-mou and others, and the amount of stolen goods sold amounted to more than one million yuan.
[Investigation and supervision of performance]
On June 14, 2022, environmental volunteer "Xiaowuge Hunan" (now a volunteer on the platform of "Yixin for the public" of Hunan Provincial People's Procuratorate, providing dozens of clues to public interest litigation cases) discovered the illegal mining activities in Shizaoling Mountain Farm. Publish case clues through tremolo, public number of WeChat, micro-blog and other platforms, and directly @ the official account of the procuratorial organs at the provincial, municipal and county levels. After receiving the clues, the provincial and municipal procuratorates handed over the case to the People's Procuratorate of Xinhua County, Hunan Province (hereinafter referred to as Xinhua County Court) and listed it for supervision. After receiving the case clues,
Xinhua County Court immediately launched an investigation to find out the fact that mineral resources were stolen and forest land was damaged by means of UAV aerial photography, documentary evidence collection and witness testimony inquiry. At the same time, it found out that the auction organized by Xinhua County Finance Bureau was not standardized, and that the materials auctioned had not been confiscated or recovered by the administrative organs according to law; The People's Government of Sangzi Town, Xinhua County failed to perform its duties of territorial management, and failed to supervise the illegal mining and destruction of forest land; the Forestry Bureau of Xinhua County failed to investigate and punish the illegal destruction of forest land by Yang and others in time and urge them to restore vegetation. As the above-mentioned administrative organs failed to perform their duties in accordance with the law and damaged the national and social public interests, the Xinhua County Court filed a case against the natural resources, forestry, financial departments and local town governments of Xinhua County on June 21, 2022.
After a comprehensive investigation, Xinhua County Court issued a pre-litigation procuratorial proposal to Xinhua County Natural Resources Bureau on June 23, suggesting that administrative law enforcement procedures should be strictly standardized and illegal mining activities of Yang Mou-mou and others should be investigated and punished according to law; On June 24, it issued the pre-litigation procuratorial suggestions to the People's Government of Sangzi Town and the Finance Bureau of Xinhua County respectively, suggesting that the People's Government of Sangzi Town coordinate with various functional departments to investigate and punish the illegal acts; suggesting that the Finance Bureau of Xinhua County should strictly examine the procedures and methods for the administrative organs to dispose of the confiscated property and dispose of them according to law; On July 1, it issued a pre-litigation procuratorial proposal to the Forestry Bureau of Xinhua County, suggesting that a professional cattle cooperative in Xinhua County be urged to restore vegetation and forestry production conditions in a timely and effective manner.
The above-mentioned administrative organs responded on schedule from August 15 to August 31, 2022, respectively, and the rectification effect was remarkable. The Bureau of Natural Resources has investigated and dealt with illegal mining activities such as Yang Mou-mou according to law, the Forestry Bureau has investigated and dealt with illegal activities such as destroying forest land according to law, and the Finance Bureau has corrected the flaws in the auction procedure of mineral resources. In order to control and restore the ecological environment, the Natural Resources Bureau, the Forestry Bureau and the Times planted and restored more than 10000 pine and cypress trees, turf and 18000 of mountain forests in Shizaoling Mountain Farm.
Xinhua County Natural Resources Bureau transferred the clues of Yang Mou-mou and other suspected crimes to the public security organs, and the public security organs transferred 2 cases and 3 persons for examination and prosecution. Up to now, Xinhua County Court has filed criminal incidental civil public interest litigation against three illegal mining cases, such as Yang Mou.
Xinhua County Court reported the handling of the case to the Party Committee and the government. After the study and decision of the executive meeting of the county government, Xinhua County Rectification Office issued the Work Program of Special Rectification Action to Combat Illegal Mining and Sand Mining in Xinhua County on June 28, 2022. Xinhua County Court took this opportunity to carry out special supervision actions on public interest litigation of illegal mining, filed 27 cases of public interest litigation, transferred 7 clues of suspected criminal cases, corrected 1 clues of administrative violations, and transferred 2 clues of violations of discipline to disciplinary inspection and supervision organs. On October 17, 2022, the
Xinhua County Court issued procuratorial proposals for social governance to the Xinhua County Natural Resources Bureau, and copied them to the Standing Committee of the County People's Congress. Relying on the two-way convergence and transformation mechanism, the CPPCC members transformed the contents of the procuratorial proposals into CPPCC proposals. On February 1, 2023, Loudi Natural Resources and Planning Bureau and the Municipal Emergency Management Bureau jointly issued the Notice on Rewarding Reports on Combating Illegal Mining Activities, which promoted the city to deepen the regulation of illegal mining.
[Typical significance]
With the help of new network media such as tremolo short video software, procuratorial organs absorb environmental protection volunteers as volunteers of "benefiting the public" and smooth the channels of clue discovery. Give full play to criminal, civil and administrative procuratorial functions, and transform procuratorial proposals into CPPCC proposals, transform the effect of handling cases into governance effectiveness, and promote systematic governance and comprehensive governance.
7． The People's Procuratorate of Shizhong District, Jinan City, Shandong Province v. Zuo and Others for Illegal Mining Criminal Incidental Civil Public Interest Litigation
[Key Words]
Criminal Incidental Civil Public Interest Litigation for Illegal Mining Limestone Tort Liability Distinguishing the Overall Restoration of the Ecological Environment The mechanism
of "chief forester + chief procurator" aims at distinguishing and determining the defendant's tort liability according to law according to the ecological environment damage caused by
different infringers in different periods of time, so as to promote the defendant to actively fulfill his liability for compensation. In the case that most of the responsible persons for the damaged mountains can not be determined, the relevant departments should be urged to repair them in a timely, effective and overall manner, and the working mechanism of "forest chief + chief procurator" should be established with the relevant departments so as to promote the implementation of responsibilities through mechanism construction.
[Basic facts of the case]
In 2019, without permission, Zuo and others exploited limestone for profit in Baojiayu Mountain, north of Dongkema Village, Shizhong District, Jinan City, Shandong Province, causing irreversible damage to a large area of the mountain. The phenomenon of illegal mining has existed for a long time in this area. Illegal criminals work at night, hide machinery, and fight "guerrilla warfare" with law enforcement officers. A large number of illegal and criminal acts have not been investigated and punished, and have caused "broken window effect". Environmental problems such as mountain destruction, dust pollution, soil erosion and vegetation destruction are becoming more and more serious.
[Investigation and Litigation]
The People's Procuratorate of Shizhong District, Jinan City, Shandong Province (hereinafter referred to as the People's Procuratorate of Shizhong District) found clues to the case in handling the criminal case of illegal mining such as Zuo Mou, initiated the criminal incidental civil public interest litigation procedure according to law, filed the case on April 10, 2020, and issued a pre-litigation announcement on April 13.
Due to the accumulation of different infringers in different periods of time in the damaged mountain system, in order to ensure the equal liability and clarify the tort liability of Zuo Mou-mou and others, the Municipal Central District Court hired professionals to conduct on-site investigation, divide the damaged mountain into blocks, and after confirming the specific damage area on the spot by Zuo Mou-mou and others, entrusted specialized agencies to appraise and evaluate according to law. On September 1,
2020, the Municipal Central District Court filed a criminal incidental civil public interest lawsuit with the People's Court of the Central District of Jinan City (hereinafter referred to as the Municipal Central District Court), appealing to Zuo and others to restore the ecological environment of the mountain body damaged by them. Jointly and severally bear the cost of the environmental treatment project 522 781. From January 13 to 15, 2021, the Central District Court held a public hearing on the case, and Zuo and others pleaded guilty. On August 4, the court of Shizhong District made a first-instance judgment, ruling that Zuo and others jointly and severally compensate for the cost of ecological environment restoration for 522781. Zuo and others did not appeal. After the judgment came into effect, Zuo Mou and others actively fulfilled their liability for compensation and turned over the cost of ecological environment restoration to the designated account.
The damaged mountain is located in the main drainage channel of the mountain range, with exposed broken surface, poor stability, soil erosion and other geological problems, which are prone to secondary disasters if not treated in time. For this reason, during the litigation period, the Municipal Central District Court, together with the natural resources and planning departments and geological experts, went to the scene for many times to investigate, discuss and exchange, and jointly discuss and formulate the restoration plan. As it is impossible to determine the persons responsible for other mountain damage, according to Article 16, paragraph 2, of the Regulations on the Protection of Mine Geological Environment, "If the person responsible for the restoration of mine geological environment is lost, the competent department of natural resources of the city or county where the mine is located shall use the special funds of the government approved by the people's government of the city or county to carry out the restoration." Article 22 of the Measures for the Protection of Mountains in Jinan City States that "the responsible person shall be determined according to the principle of" who manages who is responsible, who develops who is responsible, who destroys who is responsible ". If it is impossible to determine, the people's government of the county or district where it is located shall be responsible for organizing the restoration and treatment. Take the initiative to consult with the natural resources and planning departments, urge them to carry out the overall restoration and management of the mountains involved in the case, including the damaged mines, stabilize the slopes by means of dumping dregs and rubble retaining walls, eliminate geo logical disasters, and plant trees, shrubs, ground covers, etc. The geological environment of the damaged mountains has been greatly improved. After the completion of
mountain restoration, the Municipal Central District Court and the forestry department held a symposium to urge the forestry department to strengthen the vegetation planting of damaged mountains and increase the vegetation coverage, and signed the "Opinions of the Municipal Central District on the Establishment of the Working Mechanism of" Forest Chief + Procurator-General "to establish a cooperative mechanism and enhance the joint efforts to protect the green mountains and rivers.
[Typical significance]
The current situation of environmental damage is caused by the accumulation of different infringers in different periods of time. The procuratorial organs distinguish and clarify the defendant's tort liability, ensure that the fault is equal to the liability, and safeguard the defendant's legitimate rights and interests in accordance with the law while cracking down on crime and deterring illegal acts. It is helpful for the defendant to plead guilty and actively fulfill his liability for compensation. The procuratorial organs actively urge the government to perform its duty of repairing the damaged ecological environment in a timely, effective and overall manner.
8． Beijing Mentougou District People's Procuratorate v. Gao Moumou, Wang Moujia and Others Illegal Mining Criminal Incidental Civil Public Interest Litigation Case
[Key words]
Criminal Incidental Civil Public Interest Litigation Illegal Mining Guidance Investigation Remote Sensing Detection Management
of compensation for ecological environment damage [gist]
In view of illegal mining cases, the procuratorial function of public interest litigation should be moved forward to guide criminal investigation by public interest investigation. Taking case handling as an opportunity, we will promote the introduction of local measures for the management of funds for compensation for ecological environment damage, and promote the standardization and institutionalization of the management of funds for compensation for ecological environment damage.
[Basic facts of the case]
From May to August 2020, Wang Moujia, together with Wang Mouyi and Zhao Moumou (at large), with the help of Zhang Moumou, stole pyrophyllite without obtaining a mining license by taking advantage of the implementation of the repair project of the 110 KV substation in Wangping Town. In April 2021, Wang Moujia gathered Gao Moumou, Wang Mouyi, Huang Moumou and others to dig and steal pyrophyllite in Lujiapo Village, Wangping Town, Mentougou District, Beijing, and at the same time, Wang Mouyi and others stole pyrophyllite. The above-mentioned illegal mining activities have resulted in the loss of mineral resources and the destruction of the ecological environment.
[Investigation and Litigation]
The criminal procuratorial department of the People's Procuratorate of Mentougou District of Beijing (hereinafter referred to as the Mentougou District Court) found clues to public interest litigation and transferred them to the procuratorial department of public interest litigation when performing its duties of examining and arresting. On September 6, 2021, Mentougou District Court filed a case with criminal incidental civil public interest litigation and issued a pre-litigation announcement the next day. In the
case, the offender used the legal cloak of the restoration project to cover up the purpose of illegal mining, and at the same time bribed the security captain to cover up the illegal mining, and the criminal means were very concealed. In order to determine the damage results, the public interest litigation department of Mentougou District Court entrusted the Institute of Aerospace Information Innovation of the Chinese Academy of Sciences to carry out remote sensing detection with the illegal mining site found in April 2021 as the center of the circle, the radius of 1 km and the time span of 1 year. The remote sensing image not only shows the change of the pit area and the formation time of the pit discovered in April 2021, but also shows the change of the pit near the substation from May to August 2020, and the change area is large. The procuratorial department of public interest litigation shared the "Monitoring and Analysis Report on the Comprehensive Application of Remote Sensing in Procuratorial Public Interest Litigation" with the criminal procuratorial department, and jointly guided the investigative organs to collect the construction contract for the restoration of the stolen mining site project in 2020 on the basis of remote sensing images, fixed the testimony of witnesses, and finally conquered the criminal suspect and the specific organization and implementation personnel, thus forming a complete set. On September 10,
2021, Mentougou District Court entrusted the Ecological Environment Risk Damage Assessment Research Center of the Environmental Planning Institute of the Ministry of Ecology and Environment (hereinafter referred to as the Environmental Planning Institute) to conduct judicial appraisal of the ecological environment damage caused by illegal mining. After appraisal, the cost of ecological environment restoration of the mine involved in the case is 742924 7 yuan, and the cost of loss caused by the loss of service function during the period from the damage of the ecological environment to the completion of the restoration is 47354.
The Mentougou District People's Court filed a criminal incidental civil public interest lawsuit with the Mentougou District People's Court of Beijing, requesting that Wang Moujia and Wang Mouyi be ordered to jointly and severally bear the cost of restoring the ecological environment of 742924. 7 yuan, and jointly and severally bear the loss of service function during the period of 47354. 62 yuan; Gao Mou-mou and Huang Mou-mou are jointly and severally liable for the cost of ecological environment restoration of 171753 yuan and the loss of service function during the period of 6529.44 yuan; During the trial of the
case, Mentougou District Court and Wang Moujia reached a mediation agreement on the part of incidental civil public interest litigation, and Wang Moujia voluntarily undertook all the costs of ecological restoration and appraisal, totaling 85.2022. The Mentougou District Court gave judicial confirmation to the criminal incidental civil mediation letter. Wang Moujia has paid all the above fees.
In order to ensure that the amount of compensation is fully used for ecological restoration, Mentougou District Court actively seeks the support of the Political and Legal Committee of the District Committee on the collection, management and ecological restoration of compensation funds for ecological environment damage in this case. With the approval of the Political and Legal Committee of the District Committee and the District Government, the Mentougou District Court, together with the financial and regulatory departments of the district, held a coordination meeting and formed opinions on the revenue and expenditure and manag ement methods of the ecological damage compensation funds, and the ecological damage compensation funds paid by the compensatory obligors entered the court's execution account and then passed through the regulatory departments of the district. The regulation department shall apply for the organization and implementation of the restoration of the damaged ecological environment. Now all the fees paid by the compensation obligors have been collected, most of the ecological environment has been restored, and the follow-up ecological restoration work has been carried out in an orderly manner.
Taking the case as an opportunity, Mentougou District Court, in conjunction with the ecological environment department and the financial department, promoted the promulgation of the Measures for the Management of Compensation Funds for Ecological Environment Damage in Mentougou District of Beijing, and actively explored the collection, management and use of compensation for ecological environment damage.
[Typical significance]
In view of the cases of illegal mining and destruction of the ecological environment, the procuratorial organs make full use of remote sensing images and other scientific and technological means to investigate and collect evidence, and guide the investigation of criminal cases, forming a complete chain of evidence, and practicing the integration of performance. At the same time, the concept of restorative justice is practiced, and a mediation agreement is reached with the defendant on the part of incidental civil public interest litigation on the premise of not impairing the litigation request and not harming the public interest, which is judicially confirmed by the court, thus saving judicial resources while protecting the ecological environment.
9． The People's Procuratorate of Wuhu Economic and Technological Development Zone in Anhui Province v. Peng Mou-mou and other 55 people in the case
of criminal incidental civil public interest litigation for illegal mining [Key words]
criminal incidental civil public interest litigation for punitive damages for joint infringement of illegal sand mining Prosecution
in batches [gist]
For illegal mining and ecological damage involving more than one person, the procuratorial organs conduct in-depth investigation and prosecution in batches to accurately determine the joint and several liability of the defendants for joint infringement within the scope of their respective infringement damages.At the same time, based on the loss of ecological resources, a punitive damages lawsuit for damage to the ecological environment is filed to increase the illegal cost of malicious damage to the ecological environment.
[Basic facts of the case]
From November 2019 to April 2020, Peng Mou-mou and others invested in the purchase of four vessels and transformed them into sand suction pump vessels, forming an illegal sand mining criminal group with 55 people, headed by Peng Mou-mou, Lu Mou-mou and others as fixed members, and Liu Mou-mou and others as general participants. The criminal group has long been entrenched in the Yangtze River waters around Dongliangshan, Wuhu City, Anhui Province, wantonly stealing river sand, forming an illegal industrial chain that integrates stealing, transportation and sales. The case involves the activities of rare aquatic animals such as the finless porpoise in the sand-mining waters and is adjacent to the Tongling Freshwater Dolphin National Nature Reserve in Anhui Province. Illegal mining threatens the living environment of the finless porpoise.
[Investigation and Litigation]
The People's Procuratorate of Wuhu Economic and Technological Development Zone of Anhui Province (hereinafter referred to as the People's Procuratorate of Wuhu Economic and Technological Development Zone) obtained the clue when performing its duty of examining and approving arrest, and the procuratorial departments of criminal and public interest litigation simultaneously intervened in the investigation. On July 6, 2021 and June 13, 2022, it decided to file criminal incidental civil public interest litigation against 29 people such as Peng Mou and 26 people such as Zhou Mou for illegal mining activities, and to carry out the announcement procedure according to law. By collecting criminal case materials, visiting and investigating, and entrusting appraisal
, Wuhu Jingkai District Court found out that Peng and others illegally mined 17,048 tons of sand, worth 4602996 yuan. Wuhu Jingkai District Court commissioned a professional organization to assess the loss of river sand resources and riverbed structure caused by illegal sand mining. After assessment, the original structure of the riverbed was damaged by illegal mining 94550. 07 cubic meters, and the water conservation was reduced by 50913.
Wuhu Jingkai District Court held that. The illegal mining activities of a criminal group in Pengmou have caused great damage to the natural resources of the country and seriously damaged the ecological environment of the Yangtze River, which conforms to the provisions of the Civil Code on the application of punitive damages. Three of the parties have been ordered to bear the corresponding civil liability for compensation by the People's Court of Jinghu District of Wuhu City for the same criminal facts, and should be excluded from the defendant in this lawsuit according to law. In addition, considering that the exemption of criminal liability can not prevent the bearing of civil liability, the eight parties who are not prosecuted because the amount of crime does not reach the standard of criminal filing are listed as defendants in incidental civil public interest litigation according to law, and the tort liability relationship of the defendants is clarified, which lays the evidence foundation for the precise filing of litigation requests. On November 18,
2021, Wuhu Jingkai District Court filed a criminal incidental civil public interest lawsuit with the People's Court of Wuhu Economic and Technological Development Zone. Request to order Defendants Peng Mou-mou, Lu Mou-min and other 29 people to jointly and severally compensate for the ecological environmental damage caused by illegal sand mining 5240677 yuan, punitive damages of 10% of the amount of damages 524068 yuan, and assessment fees 10000 yuan; and make a public apology to the society in the provincial-level news media in Anhui Province. On March 25, 2022, the People's Court of Jingkai District decided to support all the litigation requests of the procuratorial organs. Peng Mou-mou and other five defendants appealed against the first instance judgment, and the Wuhu Intermediate People's Court upheld the original judgment in the second instance. On August 15,
2022, Wuhu Jingkai District Court filed a criminal incidental civil public interest lawsuit with the People's Court of Jingkai District, requesting that 26 people, such as Zhou Mou, be ordered to bear joint and several liability for their respective illegal and criminal acts and 29 people, such as Peng Mou, who have been sentenced, for compensation for ecological environment damage and punitive damages. The court's judgment supported all the litigation requests of the procuratorial organs.
[Typical significance]
In view of the large number of illegal sand mining criminal groups, the procuratorial organs initiate criminal prosecution and incidental civil public interest litigation in batches, punish criminals in time according to law on the premise of maintaining the integrity of the case, and reasonably determine the defendants in incidental civil public interest litigation. Those who fail to meet the standard of criminal filing and are not prosecuted but should bear civil liability according to law are listed as defendants in incidental civil public interest litigation, and the responsibility of ecological environment restoration of the offenders is accurately investigated, so as to give full play to the responsibility of civil public interest litigation. According to the Civil Code of the People's Republic of China and relevant judicial interpretations, the claim for punitive damages for damage to the ecological environment is based on the loss of ecological resources, which increases the cost of illegal sand mining criminal groups.
10． The People's Procuratorate of Fangcheng District, Fangchenggang City, Guangxi Zhuang Autonomous Region v. Hu Mou-mou and Others Illegal Sand Mining Criminal Incidental Civil Public Interest Litigation Series Cases
[Key Words]
Criminal Incidental Civil Public Interest Litigation Administrative Public Interest Litigation Illegal Sand Mining Guiding Investigation Joint infringement
[gist]
Procuratorial organs should strengthen the coordinated performance of criminal prosecution and public interest litigation prosecution, identify that illegal sand mining and sand purchasers constitute joint infringement, appeal to them to assume public interest damage liability, and crack down on the whole chain of illegal sand mining industry chain. Comprehensive use of "civil + administrative" public interest litigation, while recovering compensation for ecological damage, promotes the governance of damaged ecosystems, promotes local legislation, and constructs a long-term governance system and mechanism.
[Basic facts of the case]
In April 2021, the second round of the Central Eco-environmental Protection Supervision Group pointed out that "there is a very prominent problem of illegal sand mining in the Maoling River Basin and the Maowei Sea Area", and issued the "No.1 Supervision Order" to Guangxi. In the subsequent special crackdown, the public security organs seized four people, Hu Mou-mou, Liang Mou-mou, Chen Mou-mou and He Mou-mou, who intentionally evaded the inspection of marine law enforcement without obtaining a mining license and a sea area use right certificate, and without taking any ecological protection measures. In the Maowei Sea and Maoling River basins of Fangcheng District, Fangchenggang City, Guangxi Zhuang Autonomous Region, sand pumping vessels have been used for a long time to illegally exploit sea sand and sell it to Guan Mou and Ding Mou, who operate sand factories. Guan Mou-mou and Ding Mou-mou knew that the sea sand sold by Hu Mou-mou and others was illegally mined, but they still purchased and sold it at a higher price, and rented villagers'paddy fields, woodlands and other illegally occupied land along the Maoling River into the sea to pile up the stolen sea sand.
[Investigation and Litigation]
The People's Procuratorate of Fangcheng District, Fangchenggang City, Guangxi (hereinafter referred to as Fangcheng District Court) set up a "criminal + public interest litigation" case handling team, which filed cases with criminal incidental civil public interest litigation on May 12, July 15 and August 10, 2021, respectively, and intervened in advance to guide the investigation. From the nature of the illegal sea sand mining and sand purchasing actors, the determination of the amount of illegal crimes committed by the persons involved, the determination of the price of sea sand, and the joint responsibility of selling and purchasing sand, the investigation organs were guided to collect evidence, and the Jiangxi Realistic Judicial Appraisal Center was entrusted with the appraisal. The appraisal conclusion was that Hu Mou-mou and other four people illegally mined sea sand with a total 17721 of 73 cubic meters. The loss of mineral resources, the compensation for water pollution, and the damage to marine biological resources are 2959535 in total. Fangcheng District Court issued pre-litigation announcements on June 23, August 2, and August 18, 2021, respectively, and no qualified subject filed a lawsuit after the expiration of the period. According to the review
of Fangcheng District Court, the sand purchaser has a clear understanding and judgment of the source of the sea sand purchased, and the sand mining, sand selling and sand purchasing actors are all illegal profits, which are in the chain of illegal sand mining and have a high degree of synergy, and the sand mining and sand purchasing actors constitute joint infringement. On September 17, October 18 and November 5, 2021, the court filed three criminal incidental civil public interest lawsuits with the People's Court of Fangcheng District according to law. It is requested that Hu, Liang, Chen and He be ordered to compensate for the loss of mineral resources, compensation for water pollution and damage to marine biological resources, totaling 2959535. Guan and Ding are jointly and severally liable within the scope of their joint infringement. On December 22,
2021, the People's Court of Fangcheng District made a first instance judgment to support all the litigation requests of the procuratorial organs. Some defendants refused to accept and appealed, and the second instance ruling of Fangchenggang Intermediate People's Court rejected the appeal and upheld the original judgment.
Fangcheng District Court filed an administrative public interest lawsuit against Fangcheng District Natural Resources Bureau on September 6, 2022, in response to the clues of illegal occupation of paddy fields and woodlands by sand yards found in the process of handling the case. Through pre-litigation consultation, the Natural Resources Bureau of Fangcheng District was urged to shut down and renovate 58 illegal sand yards according to law, to harden the illegally occupied coasts and paddy fields with cement, and to replant and restore green. The ecological restoration project of the Maoling River Basin was listed as one of the top ten private projects in Fangchenggang City in 2022, with a total investment of 3257.
The procuratorate of Fangchenggang City formed a special investigation report in conjunction with the handling of cases, and urged the Municipal People's Congress to incorporate the Decision of the Standing Committee of the People's Congress of Fangchenggang City on the Prohibition of Sea Sand Mining into the legislative plan. At present, the decision has been examined and approved by the Standing Committee of the Fangchenggang Municipal People's Congress and is being submitted to the Standing Committee of the People's Congress of the Autonomous Region for approval.
[Typical significance]
The procuratorial organs give full play to the procuratorial functions of criminal and public interest litigation, not only crack down on illegal sea sand mining, but also recover the loss of ecological environment and resources, and promote the whole chain to rectify illegal sand mining, selling and purchasing industries. At the same time, in view of the problem of illegal land occupation and sand piling found in handling cases, the responsible departments are urged to perform their duties according to law through administrative public interest litigation, so as to achieve all-round and three-dimensional protection of the ecological environment of oceans, coasts and riverbanks, and to promote local legislation in combination with handling cases.
Recently, the Supreme People's Procuratorate issued the second batch of typical cases of public interest litigation to supervise and rectify illegal mining, and guided procuratorial organs at all levels to continue to intensify the handling of cases and improve the quality and effectiveness of handling cases. Hu Weilie, director of the Eighth Procuratorate Office, answered questions from reporters on relevant issues.
Reporter: In 2022, the Supreme People's Procuratorate released a batch of "typical cases of public interest litigation to supervise and rectify illegal mining", and this time it released typical cases in this field. What are the considerations? General Secretary Xi Jinping has repeatedly given instructions on strengthening the rational exploitation and utilization of mineral resources and strengthening the regulation of illegal mining. The procuratorial organs throughout the country have thoroughly implemented Xi Jinping's thought of rule of law and Xi Jinping's thought of ecological civilization, actively performed their duties according to law, and handled a number of cases of great concern to the Party Committee and the government, the concern of the delegates and the strong reaction of the people. It has been affirmed by all sectors of society.
Last year, we issued a number of typical cases of supervising and rectifying illegal mining, which played a guiding role in handling cases in this field by procuratorial organs throughout the country. This year, we have decided to release another batch of typical cases, mainly considering the following factors: First, the central government pays great attention to this field, which is closely related to the interests of the people. The procuratorial organs should continue to make efforts to focus on the handling of cases in this field. The release of another batch of typical cases is a clear release of this signal. Second, after the release of these cases last year, we have handled a large number of cases in this field, and there are new changes in the way and effect of handling cases. By releasing a number of typical cases, we can transmit these new changes and experience to all parts of the country in a timely manner. Thirdly, the illegal acts in this field last for a long time, cause great harm to society and make it difficult to handle cases. By issuing typical cases, we not only strengthen the handling of public interest litigation cases, but also aim to strengthen cooperation with criminal prosecutors and relevant administrative departments, so as to form a deterrent situation against illegal and criminal acts in this field through joint performance of duties.
Reporter: From these typical cases, what are the characteristics of supervising and rectifying illegal mining procuratorial public interest litigation? Illegal mining of mineral resources is mainly manifested in unlicensed mining, cross-border mining, exploration instead of mining, extended mining and so on, with various and overlapping illegal forms, which not only destroys natural resources such as minerals, seriously damages the ecological environment, but also causes the loss of state-owned property such as national mineral resources tax revenue, and does great harm to society. The typical cases released this time also involve the supervision and rectification of various illegal mining activities. For example, the procuratorial organ of Pingxiang City, Jiangxi Province, urges the administrative organs to perform their duties in accordance with the law by instituting administrative public interest litigation in response to the administrative organs'negligence in performing their duties for the illegal mining of mineral resources beyond the approved scope. Second, the effect of the series of cases is better. Cases in the field of illegal mining often involve a wide range, a long time span, a large number of illegal acts and constitute criminal offences, many cases also involve evil forces, most of the case clues come from criminal cases, a case often involves many defendants. In the process of handling cases, procuratorial organs need to merge a series of cases. Through the handling of a series of cases, various ways of supervision are adopted to give full play to the different functional advantages of administrative public interest litigation and civil public interest litigation, and to form a joint force with criminal procuratorial departments, public security organs and natural resources authorities to combat illegal mining, which fully reflects the role of procuratorial integration in performing its duties. For example, in a series of cases of illegal sand mining handled by the procuratorial organ of Fangcheng District, Fangchenggang City, Guangxi Zhuang Autonomous Region, Hu Mou-mou and others not only made the offenders bear the cost of ecological environment function loss caused by illegal mining by means of criminal incidental civil public interest litigation, but also filed administrative public interest litigation against the illegal acts of the offenders against the Natural Resources Bureau. Promote the special rectification of illegal mining in the whole region, and promote the Fangchenggang Municipal People's Congress to incorporate the Decision on Prohibiting the Exploitation of Sea Sand into the legislative plan. Third, there are many cases of illegal sand mining. As far as we know, in recent years, illegal sand mining cases handled by procuratorial organs account for a large proportion of illegal mining cases, accounting for about 46%, which shows that this kind of illegal activities are quite common, and these cases are also reflected. For example, the People's Procuratorate of Wuhu Economic and Technological Development Zone in Anhui Province handled the criminal incidental civil public interest litigation case of illegal sand mining by Peng Mou and others. Fourthly, criminal incidental civil public interest litigation cases account for a large proportion. According to the data, the proportion of public interest litigation cases in this field is more than one third. This is related to the characteristics of cases in the field of illegal mining. Most of the cases in this field involve criminal offences, and most of the case clues are transferred by public security organs or criminal procuratorial departments. The large proportion of criminal incidental civil public interest litigation cases is also in line with the actual situation. The proportion of criminal incidental civil public interest litigation cases in the typical cases we released this time is 30%.
Reporter: How do the procuratorial organs perform their duties in the process of handling cases, and what are the good experiences and practices?
First, we should adhere to the active performance of our duties in accordance with the law and promote the governance of the source of litigation. The objects of illegal mining violations are often cross-basin and cross-regional, not limited to one place. In handling cases, procuratorial organs pay attention to mechanism construction on the one hand. For example, we should make full use of the cross-regional procuratorial cooperation mechanism, and realize resource sharing and complementary advantages by establishing cooperation mechanisms such as clue transfer, investigation and evidence collection in different places, and case association. On the other hand, it highlights the advantages of procuratorial integration and maximizes the functions of procuratorial organs at all levels. Vertical linkage, through supervision, participation, handling, leading, handing over and other ways to effectively solve the problems in handling major and complex cases, at the same time, horizontal integration of performance, through close cooperation with criminal procuratorial departments and other internal institutions, to ensure the effectiveness of case handling.
The second is to unite all parties involved in public welfare protection and plug regulatory loopholes. Because there are many regulatory departments involved in the field of illegal mining, involving natural resources, water conservancy, agriculture, rural areas, ecological environment and other administrative departments, according to the relevant provisions of the current laws and administrative regulations, the responsibilities of the administrative departments are vague and overlapping, so the blind areas of administrative supervision are more common. Through handling cases, procuratorial organs urge administrative organs to clarify their responsibilities, perform their duties according to law and strengthen cooperation, so as to form a joint force to protect mineral resources and ecological environment. For example, the First Branch of Chongqing People's Procuratorate urges the administrative public interest litigation cases to control flood sediment sand and the reclamation of disaster-damaged land, and through public interest litigation to perform their duties, promotes the relevant functional depa rtments from "absence regardless" to "replacement management", and explores the establishment of a demonstration effect when all natural resources owned by the whole people lack the main body of supervision. It has also actively promoted the incorporation of disaster-damaged land protection into local legislative planning.
Thirdly, with the help of science and technology, we should broaden the sources of clues and the channels of evidence collection. Illegal mining has the characteristics of concealment, large scope of destruction and serious damage results, and clue discovery and evidence collection are the key to handling cases. The procuratorial organs take the initiative to borrow wisdom, increase the ability of scientific and technological case handling, and use high-tech such as big data and artificial intelligence to help achieve efficient, accurate and in-depth supervision. For example, Shengzhou Municipal Court of Zhejiang Province insists on legal supervision enabled by big data, develops a model of illegal mining supervision, and applies digital data throughout the whole process of clue collection, analysis, research and evidence collection, thus solving the problem of strong concealment and difficulty in cracking down on illegal mining activities.
Fourth, we should adhere to the concept of restorative justice and put the protection of public welfare in the first place. Illegal exploitation of mineral resources often causes great damage to the ecological environment, and it is also very difficult to repair. The procuratorial organs actively repair the damaged ecology, pay close attention to the restoration of damaged public welfare, and urge the responsible subjects to take various ways to fulfill their repair obligations in a timely manner. For example, in order to ensure that the amount of compensation is used for ecological restoration, the People's Procuratorate of Mentougou District of Beijing handled the criminal incidental civil public interest litigation case of illegal mining by Gao Mou and others, jointly with the courts, ecological environment departments and financial departments, the funds for compensation for ecological damage are managed to ensure that the funds for ecological environment are earmarked for special purposes and that the restoration work is carried out smoothly.
Reporter: There are many problems in the field of illegal mining and the task of handling cases is heavy. Next, what measures will the procuratorial organs take to continue to promote the work of handling cases in this field? In order to standardize the process of handling cases in the field of illegal mining and further improve the quality and effectiveness of handling cases, we have drafted guidelines for supervising and rectifying public interest litigation cases in the field of illegal mining. After soliciting opinions from various parties, several drafts will be released in the near future. The experience we have gained in handling cases in the early stage will be fixed in a standardized way to provide guidance for handling cases in this field in the future.
At the same time, we should strengthen supervision and guidance. Due to the difficulty of handling cases in this field, we should further give full play to the advantages of the integration of procuratorial organs, and continue to strengthen communication and coordination, personnel allocation and other aspects. At the same time, we should give full play to the resource advantages of higher courts, guide local governments to participate in public interest litigation with the help of scientific and technological forces and external brains in the aspects of investigation, evidence collection and clue discovery, and integrate social forces such as volunteers of "benefiting the public" procuratorial cloud platform.
Finally, we should strengthen training and research in the light of the issuance of case handling guidelines. To guide all localities to organize and carry out practical training according to the actual situation, and to invite professionals from administrative organs such as natural resources, agriculture and rural areas and experienced procurators to give online and offline lectures in light of the key and difficult points of case handling practice, so as to effectively improve the theoretical quality and professional competence of case handlers.
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