Study On The Judicial Application Of The Crime Of Illegal Acquisition,Transport And Sale Of Precious And Endangered Wildlife

Wild animal resources are not only the pillars of the natural ecosystem,but also one of the cornerstones of human survival and development.At the same time,with the increase in the number of statutory offenders,although judges strictly apply the provisions of the law and judicial interpretation in such cases,but the public opinion that the judgment is unfair,the law does not accept the public phenomenon frequently appears.Therefore,this paper through combing the controversial problems existing in the judicial application of this crime,finding out the essence of the problem,exploring the internal causes,and on this basis,in order to provide useful suggestions for the criminal law protection of wildlife resources in China.The first chapter is the analysis of the present situation of judicial application of this crime.Through the methods of data statistics and stratified sampling,the quantitative characteristics,regional distribution characteristics and specific judicial application of the crime in the whole country are statistically analyzed.It is concluded that the number of the crime is increasing,the distribution is wide and mostly concentrated in the coastal areas and the rich areas of wildlife resources,and the specific understanding and determination of the crime by the judicial organs is more confused,and no unified standard has been formed.The second chapter is the substantive interpretation of the legal interests of this crime.From the two aspects of the purpose and mode of protection,the Wildlife Protection Law is regarded as the protection of the interests of order law,that is,the state’s management order for precious and endangered wildlife,and the Criminal Law as the protection of substantive legal interests,that is,the protection of wildlife resources,which is manifested in the reduction of the size or quantity of wildlife species.The third chapter is the analysis of whether artificial breeding of wild animals should be regarded as the object of crime.By clarifying the relegation attitude of the Convention on International Trade in Endangered Species of Wild Fauna and Flora to the artificial breeding of wild animals,the obligation to member countries and the difference between artificial breeding of wild animals and pure wild animals,and by means of literal interpretation and normative purpose interpretation,the conclusion that artificial breeding of wild animals can not be generalized.In particular,the first-level protected animals in the List and the animals in Appendix I to the Convention,whether or not they are artificial breeding species,are protected in accordance with wildlife and trade activities are strictly restricted;the secondary protected animals in the List should be determined by specific analysis of the number,size and circumstances of specific species;and the artificially bred wildlife in Appendix II to the Convention should be and protected by the Pre-Law.Chapter four explains the nature and connotation of illegal acquisition,transportation and sale.Through the method of system interpretation and substantive interpretation,it is concluded that the legal interest infringement of illegal acquisition,transportation and sale should be the same or equivalent as that of illegal hunting,killing.On this basis,the illegal acquisition should be restricted and interpreted as the purchase for the purpose of eating,killing or processing,and the determination of the illegal transport should be independently examined and judged according to whether the transport itself has the possibility of material legal interest infringement.By analyzing the nature of parrots for sale in the "parrot case ",it is clear that the standard of attempted sale of this crime is when the object of the crime is specified.In addition,under the principle of statutory punishment,the perpetrator shall simultaneously illegally acquire and sell precious and endangered wild animals,and shall be punished jointly for several crimes.The fifth chapter is the study of the problem of subjective cognition of this crime.First,to determine whether the actor can recognize the natural facts.In the case of a complete understanding of natural facts,judge whether the actor can correctly understand the pre-method.On this basis,the author judges whether there is a mistake in the criminal law and its judicial interpretation.Inevitably,the mistake of understanding the pre-law prevents the establishment of the crime,and the mistake of understanding the prohibition of the criminal law should be reduced.