Nanyang Intermediate People's Court sent the case back for retrial for the second time. The pictures in this article are provided by the respondents.
In June 2020, the Wancheng District Court in Nanyang, Henan Province made a first-instance judgment, and all five defendants were found guilty, with sentences ranging from one year and ten months to six years. After the judgment of the first instance, the two defendants appealed, and Nanyang Intermediate People's Court sent them back for retrial after the second instance on the grounds that "some facts of the original judgment were unclear". 202 1 10 Wancheng district court made a first-instance retrial judgment. Except for Xiong Zhonghao, the owner of the macaque farm, whose sentence was changed from three years to two years and nine months, the sentences of others remained unchanged. Since then, three defendants who were sentenced to actual punishment have appealed.
On120/2022, 10, Nanyang Intermediate People's Court made a second-instance judgment of retrial and ruled that the case should be sent back for retrial. On April 9, 2022, the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Destroying Wildlife Resources was officially implemented. According to the principle of "lighter punishment from the old" in the criminal law, this case should be handled in accordance with the provisions of the above judicial interpretation.
The above judicial interpretation stipulates that when determining whether it constitutes a crime and sentencing, we should comprehensively consider whether the animals involved are artificially raised, the degree of species endangerment, the living conditions in the wild, the situation of artificial feeding, whether they are included in the national list of key protected wild animals for artificial feeding, the means of behavior, the degree of damage to wild animal resources, and the degree of understanding of wild animals and their products, and comprehensively assess the social harm, accurately determine whether it constitutes a crime, and appropriately sentence them to ensure that the crime and punishment are appropriate; According to the provisions of this interpretation, if the conviction and sentencing are obviously too heavy, it can be handled appropriately according to the facts, circumstances and social harm of the case.
Accused of buying and selling captive macaques.
2065438+From July to August, 2008, Zhang Dongdong, Li Fuan, Xiong Zhonghao, Wang Xuan and Wang Xin were arrested by Wancheng District Procuratorate of Nanyang City on suspicion of illegally selling precious and endangered wild animals.
Among them, Zhang Dongdong and Wang Xin are friends, and they usually broadcast live on Aauto faster; Li Fuan is a taxi driver; Wang Xuan is a pet shop owner; Xiong Zhonghao is the head of Rong Hao Macaque Farm in Xinye County, Henan Province.
On April 20 19 19, Wancheng District Procuratorate filed a public prosecution with Wancheng District Court for the crime of illegally purchasing, transporting and selling precious and endangered wild animals.
On June 24, 2020, Wancheng District Court made a first-instance judgment and sentenced Zhang Dongdong, Wang Xuan and Wang Xin to fixed-term imprisonment for the crime of illegally purchasing and selling precious and endangered wild animals. Sentenced Zhang Dongdong to six years in prison and fined 654.38 million yuan; Sentenced Wang Xuan to four years in prison and fined 50 thousand yuan; Wang Xin was sentenced to one year and ten months in prison, suspended for two years and fined 5000 yuan. Xiong Zhonghao was convicted of illegally selling precious and endangered wild animals, sentenced to three years in prison and fined 40,000 yuan. Li Fuan was convicted of illegally purchasing, transporting and selling precious and endangered wild animals, sentenced to three years' imprisonment, suspended for three years and fined 20,000 yuan. The 23 live macaques and 2 dead macaques detained in this case were handled by the detention authorities according to law.
Macaques raised in the macaque farm involved.
Macaques raised in the macaque farm involved.
After the verdict was pronounced, Wang Xuan and Xiong Zhonghao refused to accept it and appealed to Nanyang Intermediate People's Court. The reason for the appeal is that the facts identified in the original judgment are unclear, and the macaques involved are domesticated and bred, not wild animals, and do not belong to the protection scope of precious and endangered wild animals stipulated in Article 34 1 of the Criminal Law.
On June 5438+February 1 day, 2020, Nanyang Intermediate People's Court made a ruling after hearing. The court held that some facts of the original judgment were unclear, and ruled that the original judgment should be revoked and sent back for retrial.
On 2021March 16, the first trial of the case was held in Wancheng District Court.
The Wancheng District Procuratorate accused the defendant Zhang Dongdong of illegally buying and selling 27 macaques from the macaque farm of Xiong Zhonghao and others; Defendant Li Fuan is suspected of assisting Zhang Dongdong in illegally purchasing, transporting and selling macaques 15 from Xiong Zhonghao; Defendant Wang Xuan was suspected of illegally selling 1 1 macaque; Defendant Xiong Zhonghao was suspected of illegally selling 8 macaques to Zhang Dongdong, and defendant Wang Xin was suspected of illegally selling 5 macaques. The public security organs detained 25 live and dead macaques, all of which were identified as national second-class protected wild animals.
The public prosecution agency believes that the above five defendants have constituted the crime of illegally purchasing, transporting and selling precious and endangered wild animals, and should be investigated for criminal responsibility according to law. Among them, the defendants Zhang Dongdong, Li Fuan and Wang Xuan were particularly serious, and the defendants Xiong Zhonghao and Wang Xin were serious.
Retrial, first trial, still guilty
In response to the accusation of the public prosecution agency, Zhang Dongdong and his defenders argued that the number of macaques involved in the case exceeded the actual number of transactions, and the sale was involved and should not be counted again. The macaques involved in the case are artificially raised and do not belong to the precious and endangered wild animals stipulated in Article 34 1 of the Criminal Law.
Xiong Zhonghao and his defenders argue that Xiong Zhonghao is the head of Rong Hao Macaque Farm in Xinye County and also has a breeding license. The Supreme People's Court Research Office's Reply on Legal Issues Concerning the Acquisition, Transportation and Sale of Some Wild Animals with Mature Artificial Domestication and Breeding Technology holds that due to the maturity of domestication and breeding technology, the domestication, breeding and commercial utilization of some rare and endangered wild animals have formed a scale in some areas, and the number of related wild animals has greatly increased. The acquisition, transportation and sale of these artificially domesticated and bred wild animals are actually harmless to society.
After trial, Wancheng District Court held that from April 20 17 to June 20 18, Zhang Dongdong purchased 25 macaques from Li Chaohua, Tao Shuling, Xiong Zhonghao and others who operated macaque farms, and sold 20 of them successively. Defendant Li Fuan assisted Zhang Dongdong in illegally purchasing, transporting and selling macaques 15; Defendant Wang Xuan was suspected of buying and selling 1 1 macaque; Defendant Xiong Zhonghao illegally sold 8 macaques to Zhang Dongdong; Defendant Wang Xin assisted Zhang Dongdong in illegally selling 5 macaques.
The public security organs detained 25 live and dead macaques, all of which were identified as national second-class protected wild animals.
After hearing the case, Wancheng District Court held that according to the relevant provisions of "Two Highs" implemented in March of 1 and 202 1, this case should be characterized as "the crime of endangering precious and endangered wild animals", and the objective aspects of the crime include illegal hunting, acquisition, transportation and sale. The above-mentioned defendant's behavior has constituted a crime of endangering precious and endangered wild animals, and he should be investigated for criminal responsibility according to law.
The court held that the macaque involved in the case put forward by the defender was not a precious or endangered wild animal, and the defense opinion that some defendants should be acquitted did not conform to the relevant judicial interpretation and was not adopted. In addition, Xiong Zhonghao's wife, Cheng Moumou, holds the Domestication and Breeding License and the Rong Hao Macaque Farm Business License issued by the Henan Provincial Forestry Department on June 201/kloc-0. The business scope is "domestication and breeding of macaques", excluding licensed sale of macaques. Therefore, the defendant Xiong Zhonghao and his defender held the defense opinion that the evidence should be innocent, and the court refused to accept it.
Nanyang Intermediate People's Court sent the case back for retrial for the first time on the grounds that the original judgment was unclear.
202 1 10 10, Wancheng District Court made a retrial judgment in the first instance, and all the above five defendants were convicted of endangering precious and endangered wild animals. Compared with the first-instance judgment, except for Xiong Zhonghao, the owner of the macaque farm, whose sentence was changed from three years to two years and nine months, the sentences of others remained unchanged. Zhang Dongdong's fine was changed from 6,543,800 yuan to 50,000 yuan, Wang Xuan's fine from 50,000 yuan to 20,000 yuan, Xiong Zhonghao's fine from 40,000 yuan to 20,000 yuan, and Li Fuan's fine from 20,000 yuan to 6,543,800 yuan. Wang Xin's sentence and fine remain unchanged.
After the first-instance judgment was retried, Zhang Dongdong, Wang Xuan and Xiong Zhonghao appealed to Nanyang Intermediate People's Court.
On June 20th, 2022, at 65438, Zhang Dongdong and Wang Xuan were released on bail pending trial by Nanyang Intermediate People's Court. Previously, the other three defendants had also been released on bail pending trial, and Xiong Zhonghao was released on bail pending trial by Wancheng District Court on March 24th, 20021. Li Fuan was released on bail pending trial in July 19, and changed to residential surveillance in March/200217; Wang Xin was released on bail on May 1 2020, and was changed to residential surveillance on March 1 2020.
Second remand for retrial
Ceng Ming, a lawyer of Shi Jing Law Firm, defended Zhang Dongdong in the second trial. Ceng Ming believes that the court of first instance's determination of the number and profit of macaques sold in Zhang Dongdong is obviously wrong, and there are errors such as double counting.
Zhang Dongdong is a member of Xinye Macaque Art Association.
The focus of this case is that captive macaques are not wild animals protected by criminal law. Ceng Ming believes that the macaques involved are artificially domesticated and bred macaques, not wild macaques, and the defendant's behavior of selling macaques will not lead to the destruction of the ecological environment, which is not harmful to society and should not be punished as a crime. The first paragraph of Article 34 1 of the Criminal Law protects precious and endangered wild animals and their products living in wild habitats, and its legal interest is the ecological balance of the country.
"Exploring the legislative intent of Article 34 1 of the Criminal Law, the state gives priority protection to specific wild animals because the natural ecological chain of wild animals is threatened due to environmental or man-made reasons, and the population is seriously reduced or endangered. However, the artificially domesticated animal population has no influence on the ecological balance, biosphere and food chain because it is independent and separated from the wild animal population, and it is not worth or should not be included in the range of wild animal population for protection. "
In addition, the second paragraph of Article 13 of the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Destroying Wild Animal Resources jointly issued by Gao Liang on April 7, 2022 stipulates that the animals involved are artificially raised, and the artificial breeding technology is mature and has reached a scale. If it is bought, sold or transported as a pet, the case involved will generally not be treated as a crime; Those who need to be investigated for criminal responsibility shall be dealt with leniently according to law.
According to the related contents on page 8 of Xinye County Government's Service Manual on Macaque Industry Management submitted by Xiong Zhonghao's defender and prosecutor in court, "After years of development, there are about 2,000 macaque employees in Xinye County, and the breeding technology is relatively mature, initially forming large-scale breeding". It can be seen that its macaque breeding technology is mature and quite huge, and the number of macaques in the county is about 654.38+0.3 million a year.
Ceng Ming said that in order to facilitate the macaque trade, Zhang Dongdong obtained the membership card of the Macaque Breeding Association according to law and served as the director of the Propaganda Department of the Breeding Association. The macaques sold in Zhang Dongdong were all bought from regular farms with breeding licenses in Xinye County, and none of them were caught in the wild, which did not destroy the wildlife ecology. Moreover, the prosecutor has no evidence to prove that the monkeys involved were caught in the wild.
At the same time, the evidence in this case is sufficient to prove that the macaques involved were bought and sold as pets, not for eating or other illegal purposes. The investigators in this case are all macaques detained from the buyer's home, which proves that macaques are kept at home as pets.
Ceng Ming said that before the publication of the Interpretation, this case was similar to the Shenzhen parrot case and the Henan farmer picking three miscellaneous drafts, one of the "Top Ten Criminal Cases of the People's Court of 20 18", which reflected the people's understanding of the law and the realistic problem of the distance between people's simple values and the law. Therefore, based on the principle of realizing the organic combination of law and emotion and maintaining the modesty of criminal law, Zhang Dongdong should be acquitted.
On June 20, 2022, 10, Nanyang Intermediate People's Court made a second-instance ruling, revoked the first-instance judgment again and sent it back for retrial. On April 9, 2022, the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Destroying Wildlife Resources was officially implemented. According to the principle of "lighter punishment from the old" in the criminal law, this case should be handled in accordance with the provisions of the above judicial interpretation.