I. Brief introduction of the case
The public prosecution agency accused the defendants A and B of organizing many people to dig gold mines underground in the farm rented by A, and transporting the dug gold mines to the gold processing plant to extract gold. From 2008 to 20 13, * * * won more than 30,000 grams of gold, with an appraisal value of more than 6 million yuan. The public prosecutor believes that Party A and Party B secretly stole the mineral resources owned by the state for the purpose of illegal possession, and the amount is huge, so they sued the court for theft.
Second, this crime and that crime.
Whether the charges charged by the public prosecution agency are accurate or not is the first consideration for lawyers. After accepting the entrustment, the lawyer, after collecting and studying the case file, thinks that the case is characterized as illegal mining crime, which is more in line with the law and the amount involved is quite different, so the idea of misdemeanor defense is established.
? (a) the provisions of the crime of theft and illegal mining
Theft, as its name implies, is an act of stealing public and private property secretly for the purpose of illegal possession, and its statutory maximum penalty is life imprisonment. The public prosecutor believes that in this case, A and others extracted gold ore belonging to the country into gold by secret means, and turned the country's mineral resources into their own wealth through a series of actions, which is a typical theft.
The crime of illegal mining is a statutory crime. According to the current criminal law, it refers to mining without a mining license, entering the state-planned mining areas, mining areas of great value to the national economy and other people's mining areas without authorization, or mining specific minerals protected by the state. If the circumstances are serious, the maximum legal penalty is 7 years. Lawyers believe that B and others violate the national mineral resources management system and mine gold without authorization, which is more in line with the crime of illegal mining.
(2) The distinction between theft and illegal mining.
Combined with the facts of this case, talk about the specific difference between theft and illegal mining.
1. From the object of crime, theft infringes on the ownership of public and private property, while illegal mining infringes on the ownership of mineral resources and the state's management system for mineral resources exploitation. The illegal mining activities of Jia et al. violated the law and exploited gold without authorization, which destroyed the gold resources and market management system. The object of his behavior is not only the ownership of gold ore, but also the natural environment, the safety and health of places, community relations and the sustainable development of economy, which are not covered by the concept of "theft".
2. From the objective aspect of crime, A hired workers to mine gold and dig mines and tunnels. Some people are responsible for finding veins through drawings, while others are responsible for laying detonators and explosives. The workers have a clear division of labor, and their operation mode conforms to the basic mode of mineral mining. The labor, technology and risk costs they pay can't be compared with theft. Compared with theft, the condemnation of illegal mining crime should be greatly reduced.
3. From the legislative intent of legislators, the crime of illegal mining is a statutory crime caused by the development of human society and the increasing scarcity of resources, as well as the state's protection and management system for mineral resources, which is essentially different from the social order protected by natural crimes such as theft that exist with the emergence of human beings. Will change because of the changes in legal policies in different periods.
Therefore, the behavior of a person and others needs to consider a variety of factors for comprehensive consideration and characterization, and can not be simply described as "theft."
Third, the key turning point.
? (A) "from the old and light"
An important difference between criminal law and other departmental laws is that the implementation of criminal law follows the principle of "from the old to the light". 20 1 1 Criminal Law Amendment (VIII) adjusted the determination of the crime of illegal mining. This major change should be enough to arouse the great concern of defense lawyers, and it is this change that gives lawyers a huge defense space.
20 1 1 The provisions of the criminal law before the amendment (hereinafter referred to as 20 1 1 criminal law before the amendment) on the crime of illegal mining are: mining without a mining license, entering the planned mining areas of the state, mining areas of great value to the national economy and other people's mining areas without authorization, and mining specific minerals protected by the state. Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Mining and Destructive Mining (20 16 has expired) implemented in 2003 stipulates:
"Illegal mining in violation of the provisions of the mineral resources law, under any of the following circumstances, refused to stop mining after being ordered to stop mining, resulting in the destruction of mineral resources, in accordance with the provisions of the first paragraph of Article 343rd of the Criminal Law, convicted and punished for the crime of illegal mining:
? (a) mining without a mining license;
? (two) unauthorized access to the national planning of mining areas, mining areas of great value to the national economy and other people's mining areas;
? (three) unauthorized exploitation of specific minerals prescribed by the state for protective mining. "
It can be seen from the above provisions that before 20 1 1 years ago, a prerequisite for the crime of illegal mining was the plot of "refusing to stop mining after being ordered to stop mining", and the materials submitted by the public prosecution agency did not prove that A and others were ordered to stop mining! In fact, the tailings excavated by A are also neglected and have not attracted the attention of local management departments. Therefore, once it is determined that A and others belong to illegal mining, the defendant's mining behavior in this case during the period of 2008-20 1 1 before the revision of the criminal law does not constitute a crime.
Then, according to the provisions of the Criminal Law after 20 1 1, how to punish the defendant for his criminal acts during 201-2013?
First of all, it should be clear that 1988 "Notice on Protective Mining of Gold Minerals in the State Council" issued by the State Council listed gold minerals as specific minerals for protective mining. The Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Mining and Destructive Mining issued by the Supreme Law and the Supreme People's Procuratorate 20 16 stipulates that if the value of mining a specific mineral is more than 250,000 yuan but less than 750,000 yuan, the circumstances are particularly serious, and it can be sentenced to three to seven years in prison. Regrettably, judging from the value of gold ore collected by the defendant during the period of 2011-2013, it has also reached the standard of "particularly serious circumstances" for the crime of illegal mining.
? (2) Circumstances of sentencing
Although the value of the ore excavated by A and others has reached the sentencing level of "the circumstances are particularly serious", lawyers believe that B only plays an auxiliary role in this case, can sincerely repent during the trial of the case, take the initiative to hand in the illegal income and actively pay the fine, and has no criminal record, so the punishment should be mitigated. In the end, the court adopted the above defense opinions, and mitigated the punishment of the defendant B for the crime of illegal mining and applied probation.
Four. abstract
Generally speaking, this case has two outstanding features. One is the defense thinking of legally prescribed punishment for a crime, and the other is to realize this breakthrough by using the criminal law principle of "combining leniency with severity".
Statutory punishment often has different criminal constitutions in different periods with national policies, a certain industry, social development and other factors. This is also the reason why some lawyers think that criminals who are legally punished are easy to plead not guilty. In addition, compared with natural criminals who are often more vicious, statutory criminals are less punishable, and if the crime is lighter, it is easy to get a lighter punishment. In addition, lawyers, as professional legal persons, should always master the old and new laws, especially those in the criminal field, and should combine the principle of "tempering justice with mercy" to earnestly safeguard the legitimate rights and interests of the parties.