According to the masses, some people dug sand and took soil in the basic farmland of Xiaocheng Village, feng village Township, Tongxu County, with a destruction depth of 1.2 meters and an area of 7.5 mu. Land law enforcement officers went to stop it and traced the first person responsible for destroying this basic farmland. Because the case has violated Article 342 of the Criminal Law of the People's Republic of China, which constitutes a crime, the Bureau of Land and Resources handed the case over to the County Public Security Bureau for investigation. Tongxu County Public Security Bureau asked the Bureau of Land and Resources to provide the appraisal certificate that the basic farmland was seriously damaged. According to the requirements, Tongxu County Bureau of Land and Resources, combined with the relevant technical personnel of Tongxu County Agricultural Bureau to take soil and test on the spot, determined the composition of the damaged soil. However, Tongxu County Agriculture Bureau said that it did not have the authority to issue a certificate of serious soil damage, and the certificate issued had no legal basis. Tongxu County Public Security Bureau cannot file a case because there is no identification certificate of serious land damage. Which department should issue an appraisal report on the destruction of cultivated land when dealing with cases of destroying cultivated land? Lin Xinliang, Liu Lingling of the Bureau of Land and Resources of Tongxu County, Henan Province
Answer: Article 342 of the Criminal Law of the People's Republic of China stipulates: "Whoever illegally occupies farmland, forest land and other agricultural land in violation of land management regulations and changes the use of the occupied land in a large amount, thus causing a large number of damages to farmland, forest land and other agricultural land, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also or shall only be fined." Accordingly, the constitution of this crime requires both "a large number" and "a large number of agricultural land destroyed". On June 9, 2111, Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destruction of Land Resources explained that "a large number" and "a large number of cultivated land were destroyed": ① "a large number" of illegally occupied cultivated land means illegally occupying more than 5 mu of basic farmland or more than 11 mu of cultivated land other than basic farmland. (2) illegal occupation of cultivated land "caused a lot of destruction of cultivated land" means that the actor illegally occupied cultivated land to build kilns, build graves, dig sand, quarry, mine, borrow soil, pile up solid waste or carry out other non-agricultural construction, resulting in serious damage or pollution to the planting conditions of cultivated land above 5 mu of basic farmland or over 11 mu of cultivated land outside basic farmland. The "Interpretation" makes specific provisions on the illegal occupation of agricultural land in terms of quality (seriously damaged or seriously polluted planting conditions) and quantity (more than 5 mu of basic farmland or more than 11 mu of cultivated land outside basic farmland).
Therefore, in order to investigate the criminal responsibility of the perpetrator, there must be evidence to prove the fact that the basic farmland was seriously damaged. As for the proof of this fact, Article 119 of the Criminal Procedure Law of the People's Republic of China stipulates: "In order to find out the case and need to solve some specialized problems in the case, people with specialized knowledge should be appointed and hired for appraisal."
article 6 of the regulations on the protection of basic farmland stipulates: "the land administrative departments and agricultural administrative departments of local people's governments at or above the county level shall be responsible for the protection and management of basic farmland within their respective administrative areas in accordance with the division of responsibilities stipulated by the people's governments at the corresponding levels." Therefore, in this case, both Tongxu County Land and Resources Bureau and Tongxu County Agriculture Bureau are responsible for the protection and management of basic farmland within their respective administrative areas.
On the one hand, according to Article 23 of the Measures for Investigating and Handling Cases of Land Violations: "The undertaker (referring to the undertaker designated by the land management department) may inspect the physical evidence or the site when necessary. When inspecting physical evidence or the site, the inspectors shall invite relevant organizations or personnel to participate. When conducting an inquest, an inspector may take photos and measure the physical evidence or the scene. A written record shall be made of the information and results of the inspection, which shall be signed or sealed by the inspectors, witnesses and parties concerned. If the parties refuse to participate, it will not affect the inspection. " Therefore, the land and resources management department itself has the authority to inspect the land.
On the other hand, Article 4 of the National Measures for the Management of Cultivated Land Soil Monitoring stipulates: "The management of national soil monitoring shall be entrusted by the Ministry of Agriculture to the National Agricultural Technology Extension Service Center. The competent agricultural departments at or above the county level (soil and fertilizer stations, testing centers, and agricultural technology centers) are responsible for soil monitoring and management in their respective administrative areas. " Therefore, the relevant technicians of Tongxu County Agricultural Bureau refer to the provisions of the National Technical Regulations for Monitoring Cultivated Land Soil to conduct sampling and testing, determine the composition of the damaged soil, and make a technical description of the degree of soil damage, which also has certain authority.
That is to say, both Tongxu County Land and Resources Bureau and Tongxu County Agriculture Bureau have the right to identify and explain the degree of serious soil damage. In this case, in order to deal with this case of serious damage to basic farmland as soon as possible in accordance with the law, so as to facilitate the implementation of the basic farmland protection system, Tongxu County Agriculture Bureau and Tongxu County Land and Resources Bureau can independently identify and explain the soil damage, and can also coordinate with each other, and the public security department should also pay full attention to it and should not be confined to formal regulations.
Li Xiaobin, director of Beijing Li Xiaobin Law Firm.