On Judicial Recognition Of Illegal Mining Behavior From Criminal Law Perspective

Mineral resources can be used in industry,agriculture,science & technology and various aspects of human life,which form the important material basis for production and life of human beings,serve as important resources and precious wealth for a country and concern a country's economic lifeline and national security.With social progress in China,the demand for mineral resources has been increasing continuously.However,because of the non-renewable character and scarcity of mineral resources and the strict licensing system on exploitation of mineral resources adopted by this country,some perpetrators conducted unauthorized exploitation of mineral resources without mining license in order to seek illegal profit,which caused damages to mineral resources,disturbed normal order of exploitation severely and resulted in very serious results such as damage to the ecological environment,water loss and soil erosion and severe personal injury and property damage.Although administrative judicial authorities have been cracking down on such activities severely according to law,number of illegal mining cases is still high.China enacted Amendment to Criminal Law(VIII)to improve criminal legislation on crime of illegal mining and The Supreme People's Court of the People's Republic of China and The Supreme People's Procuratorate of the People's Republic of China provided guidance for judicial practice in trial of crime of illegal mining by enacting judicial interpretation for the purpose of intensifying the crackdown on illegal mining and enhancing protection of mineral resources.Objects of crime of illegal mining are scarce “mineral resources”,including 172 kinds in 4 general categories,in addition to which sand and gravel may be deemed as objects of crime of illegal mining when sand and gravel along a river channel and sea sand are exploited for the purpose of seeking profit.As for crime of illegal mining,perpetrators violate laws and regulations concerning exploitation and protection of mineral resources,including not only Mineral Resource Law but also Water Law and other relevant laws and regulations.Exploitation of mineral resources is permitted only when mining license can be obtained.The procedures for issuing mining license are strict.Mining without mining license,mining when mining license has been revoked,withdrawn or cancelled,or mining beyond the period,mining scope or mineral type permitted by mining license should be deemed as “mining without license”.When a perpetrator of illegal mining conducts any unauthorized exploitation of mineral resources without license,such act of illegal mining should be determined as criminal act if the legal standard for “severe circumstances” is reached in aspects of value of exploited mineral products,damage to mineral resources and damage to ecological environment or subjective malicious intention of the perpetrator.For judges,it is crucial to correctly identify whether an act of illegal mining meets conditions for being determined as a crime in practice.Only when those acts of illegal mining causing severe harm to the society can be correctly selected and punished,China's strong will to protect mineral resources can be sufficiently reflected and other illegal miners can thus be frightened.In this paper,starting from objects of crime of illegal mining,the author analyzes facts about crime of illegal mining based on the spirit of the newly implemented judicial interpretation on illegal mining,conducts a systematic discussion on objective aspects of crime of illegal mining from the perspectives of “violating regulations in Mineral Resource Law”,“failure to obtain mining license”,“way of act of unauthorized mining” and “standards for identifying severe circumstances” and makes an elaboration on revision of laws concerning crime of illegal mining and relation between crime of illegal mining and other similar crimes based on continuous reference of the case of illegal mining conducted by perpetrators surnamed Zhang and Li.It is hoped that this research may have certain significance in reference for judges in determining crime of illegal mining during judicial practice.