Optimize the application of judicial application of the crime of abusing forest

On December 1, 2021, the Supreme People's Court released the "31st Batch of Guiding Cases" (French [2021] No. 286). Typical guidance cases. The basic case is: In 1998, the Qin family contracted the "land" forests in the core area of ​​the Baiyun Mountain Nature Reserve, and began to plant fir forests in a planned place the following year. The forest land is located within the public welfare forest and belongs to the public welfare forest land. Subsequently, Qin Jiaxue violated the forest law without applying for the "forest and wood mortgage permit", and unauthorizedly harvested the fir forest on his contracted land and sold it. The forest wood in the protected area was 117.5 acres of forests and 15.46 acres of forest wood outside the core area. After identification, the Qin family learned a total of 1010 forests, and the forests accumulated 153.3675 cubic meters. The county forestry survey and planning and design team issued a design instructions for supplementary planting and supplementary operations, and calculated the cost of replenishment of 66025 yuan. The public prosecution agency filed a public prosecution on the crime of abusing forests, and filed a civil public interest lawsuit on the grounds that the public interests were damaged during the lawsuit. In the end, it was determined that the Qin family's crimes were criminal to cut forests. They were sentenced to three years in prison, four years of probation, and fined 10,000 yuan. above.

There are three characteristics of the referee in this case: First, this case emphasizes the ecological legal benefits of the protection of forest resources. Compared with the previous protection of the law and benefits of the forest management order and the law of the property of the forest rights, the protection of ecological law enriches the connotation of the protection of the law. Essence Second, the case increases public interest litigation on the basis of criminal proceedings, and considers the loss of ecological legal benefits of forest resources as a loss of social public interest. ask. Third, the case of ecological legal benefits is calculated scientifically and reasonably in this case, and fully refer to the suggestions of experts. In terms of the choice of ecological restoration measures, the experts will issue the "Land" supplementation work design instructions and related professional materials and suggestions. The loss of ecological legal benefits of cutting forests to the minimum.

Based on integration thinking to protect the ecological law of forest resources

The "Qin Family Case" focuses on protecting the ecological resources of the forest and wood, abandoning order and benefit theory and property law of property in the choice of protecting legal benefits, and instead adopting the ecological human center law theory. In the choice of the benefits of the protection of forest resources, only when the preservation of the environmental conditions of existing humans and future human beings exists, the ecological environment will become independent protection of legal benefits. The law and benefits of the crime of abusing forests include the ecological damage of the forest and wood, and the consequences of ecological damage will endanger or may endanger the ecological safety of the forest ecosystems that human survival and development. Degenerate. In short, the theory of human centers that chose ecological centers in the crime of abusing forest wood is the embodiment of active criminal law, which is in line with the preventive protection of forestry resources in the face of the national level. Based on the integration of human society and the natural environment, forestry resources are protected.

The theory of human centers that adheres to the ecology of this case adopts integrated thinking, because the forest is in the core area of ​​the nature reserve, and the forest has the effects of maintaining water and soil and maintaining biological diversity. Therefore For the inseparable unit part of the forest resources in the nature reserve, the abuse of cutting has severely damaged the ecological environment and damaged biodiversity. Based on the protection of the crime of deleting forest wood based on the integration thinking, we can seek balance between the values ​​of the environment and the human standard values, and trace the impact of the law and benefits of the forest wood to damage the impact on human society, and on the human society and the natural environment. The losses of legal benefits are mentioned, which not only conforms to the concept of prevention of active criminal law, but also complements the scope of the protection of criminal law.

Use criminal attachment to civil public interest litigation to calculate the law loss

As a guiding case, this case helps optimize the processing procedures for categories. In order to safeguard social public interests, civil public interest lawsuits are introduced during criminal proceedings. The case of public interest lawsuits in this case is because the damage of the abuse of forests to ecological legal benefits continues to the social public field and will infringe on social public interests. The procuratorial organs lead the public interest lawsuit, which can better protect the ecological value of the forest and wood, mobilize multi -party forces to calculate the ecological losses of forest resources in the process of public interest litigation, and use integrated thinking based on the perspective of the ecological environment to calculate the law loss.

First, the loss of ecological legal benefits caused by the abuse of forest wood is mainly the direct loss of forest resources, including the loss of carbon release due to the destruction of forest, the ecological service value of the forest destruction period, and the value of the ecological service of the forest recovery period, covering the growth of forest and wood growth The whole process. The loss of carbon release caused by the destruction of the forest is directly related to its carbon exchange capacity. In the process of achieving carbon neutrality, the forest as the main body of the land ecosystem has a strong carbon exchange capacity. idea. The ecological service value of the destruction period of the forest corresponds to the ecological loss caused by the destruction stage of the forest and is closely related to the ecological value of the forest. The value of ecological services in the restoration period of the forest is used to calculate ecological losses with development vision. Compared with the ecological service value of forest resources in the mature period, the value of the ecological service of the forest in the restoration period is relatively low. The value of ecological service value that should not be provided due to destruction.

Second, the loss of human society caused by the behavior of the forest wood is indirect losses caused by the loss of natural environment. The reason for the adoption of public interest litigation in this case is that the public interest of the society is damaged, which will destroy the damage to the ecological legal interests caused by the ecological environment into the category of public interests of the society, showing the close connection between human society and the natural environment. By paying attention to the public welfare of civil public interest litigation with environmental civil interests, the court can better exercise its responsibilities and supplement the case of lack of or missed the demand for relief ecological environmental damage. In addition, the indirect losses of human society caused by the behavior of abusing forest wood need to have an inherent connection between the abusive behavior and the damage of legal benefits. With internal connection, it should not be included in the loss of public interests. Use expert opinions to improve ecological restoration

The "Reform Plan for Ecological Environmental Damage Compensation System" (China Office [2017] No. 68) clearly stated that in order to reflect the ecological functional value of the environmental resource and promote the repairs of the damaged ecological environment, the ecological environment damage cannot be repaired. Currency compensation is implemented to replace repair. When formulating an ecological restoration obligation in this case, refer to the professional opinions issued by the forestry planning and design units and the competent department of nature reserves, and clarify the specific requirements of the tree species, age, place, quantity, survival rate, completion time and other specific requirements of the resolution of the repair obligations, and ensure that it is ensured The professionalism of ecological restoration.

With the help of scientific and reasonable experts, the applicable value of ecological restoration as a non -penalty measure can be given to the greatest extent. Setal circumstances reflect the concept of recovery. In the specific implementation of ecological restoration, from the perspective of ecological civilization construction, we should fully refer to the ecological restoration professional suggestions proposed by professional institutions, and to formulate ecological restoration plans reasonably. In this case, ecological restoration measures are scientifically set on specific requirements for tree species and age. This ecological repair measures formulated by professional institutions are more realistic and feasible. The loss of calculating ecological legal benefits in professional opinions mainly revolves around the loss of carbon release. Based on carbon exchange loss and existing technology, the advantageous tree species of ecological restoration is selected, because a single plant carbon reserves = single plant biomass × carbon -containing coefficient, single plant biomass quantity It refers to the weight of a single -strain live plant represented by dry weight. The carbon -containing coefficient refers to the ratio of the total amount of organic carbon occupation in the forest biological amount, so choosing an advantage tree species will accelerate the loss. In short, in the process of ecological restoration, measures such as forest and wood supplementation must be selected, and the dominant tree species should be selected, and the local natural environment should be used to reasonably cultivate to maintain scientific growth density.

In the context of emphasizing the "carbon peak" and "carbon neutralization", protecting the actual effects of forest resources related to the construction of ecological civilization in my country, for the abuse of forest wood in judicial practice, should promote the protection of the law of the protection of forest wood for the protection of forest wood. Ecological transformation and use this as an opportunity to optimize the judicial application of the crime of abusing forest. The guiding case No. 172 pointed out the direction of the judicial application of the crime of deleting forestry, highlighting the protection of the ecological legal benefits of forest resources, and the interpretation of criminal law and procedures around the consequences of ecological damage. Essence

(This article is the State Social Science Fund general project "Research on Criminal Responsibility Border and System Construction" (18BFX104) phased results)

(Author Unit: School of Law of Southeast University)

Source: China Social Science Network-Journal of Social Sciences of China

Author: Chen Yuheng

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