The Practical Dilemma And Countermeasures Of The Crime Of Illegal Fishing Aquatic Products

With the rapid development of society,more and more attention has been paid to the construction of ecological civilization and the rule of law,The legal regulation of illegal fishing of aquatic products has gone through the process from "Regulations on the protection of aquatic resources reproduction" to "Fisheries Law of the People’s Republic of China" and then to "criminal law".In recent years,the ecological environment continues to deteriorate,the importance of ecological environment protection including fishery resources protection is constantly improving,and the construction of ecological civilization is gradually put on the agenda.The existing crime of illegal fishing of aquatic products was created in the1979 Criminal Law and improved with the amendment of the 1997 criminal law.The major change of the amendment lies in the transformation from the object of "economic interests" to the object of "environmental interests",which is in line with the development of economic and social development,especially the development and evolution of ecological environmental protection.Although article 340 of the criminal law stipulates the crime of illegal fishing of aquatic products,due to the abstract description of the crime,there are some disputes about the application of this crime,including the determination of this crime.In recent years,with the introduction of a series of policy documents on strengthening ecological and environmental protection by the party and the state,illegal fishing of aquatic products has been severely cracked down.From the criminal cases of illegal fishing of aquatic products handled by the first branch of Chongqing Municipal People’s Procuratorate in the upper reaches of the Yangtze River in recent years,there are some prominent problems in the judicial application of the crime of illegal fishing of aquatic products,such as the judicial "seeking the law" ”Dilemma.The reasons are as follows: first,there are different standards for the conviction of "serious circumstances";second,the provisions of the criminal law are not clear;third,the basic reason for the uncertain legal guidance of the same act is that the provisions of article 340 in the criminal law are ambiguous.At present,it is necessary to optimize and improve the legislation,law enforcement and justice of the crime of illegal fishing of aquatic products under the basic requirements of promoting the construction of ecological rule of law On the whole,the first is to further clarify the constituent elements of this crime on the micro level;the second is to establish the system guarantee of judicial application on the macro level;for example,the convergence of administrative law enforcement and criminal judicial norms,and the orderly interaction of criminal attack and incentive techniques.This paper is divided into three parts: introduction,text and conclusion.The text includes three parts.The first part is the legislative process of illegal fishing of aquatic products.In this part,through the elaboration of the legislative evolution of the crime of illegal fishing of aquatic products,we can understand the development of the legislation of the crime of illegal fishing of aquatic products in China,and provide valuable experience for future legislation.The second part focuses on the practice of illegal fishing of aquatic products.This part investigates the cases of illegal fishing of aquatic products accepted by the first branch of Chongqing People’s Procuratorate as an example,and selects the relevant cases of the crime of illegal fishing of aquatic products in nearly four years from 2017 to June 30,2020.Through the statistical case sorting,comparative study,and data analysis.This paper summarizes and analyzes the basic situation of the accused of illegal fishing aquatic products crime in the past four years,the sentence and fine,the use of penalty auxiliary measures and so on,which lays the foundation for the analysis of the dilemma of illegal fishing aquatic products in judicial practice.The practical dilemma mainly includes three aspects: the dilemma of judicial "finding the law",the dilemma of judicial "getting the bottom",and the dilemma of judicial "role".The third part is to improve the application of the crime of illegal fishing aquatic products.After analyzing the practical difficulties of the crime of illegal fishing aquatic products,this paper puts forward relevant suggestions.On the one hand,from the micro level judicial interpretation of the criminal law 340 illegal fishing aquatic products crime "illegal","prohibited tools","aquatic products","serious circumstances" identified.On the other hand,we should deal with the crime of illegal fishing aquatic products from the macro level,including the organic coordination of criminal law provisions and environmental protection laws,the convergence of administrative law enforcement and criminal justice norms,and the orderly interaction of criminal attack and law-abiding incentives.