Research On The Crime Of Illegal Hunting,Acquisitoion,Transportation And Sale Of Terrestrial Wildlife

The consumption of wild animals has a long history around the world.However,due to the development of human society and the change of human constitution,this custom inherited from the primitive fishing and hunting society has become a bad habit that may lead to the spread of virus,seriously threatening human public health security.In order to curb this trend of overeating and ensure social public health security,the amendment to the Criminal Law（11）added the crime of illegal hunting,purchase,transportation and sale of terrestrial wild animals in the third paragraph of Article 341 of the Criminal Law,and brought the illegal hunting,purchase,transportation and sale of terrestrial wild animals into the scope of the criminal law.As a new crime,this crime is seldom applied in judicial practice,and there is no legislative interpretation to clarify the relevant issues of its judicial application.Savigny,a famous jurist,once said: "legal provisions are only the medium of carrying legal norms,and the applicable law is not a mechanical application of the literal meaning of the law.The applicable law shall interpret the meaning carried by the law and apply the content of its norms." In order to make this charge be applied reasonably and effectively in practice,this paper intends to explain the relevant issues of this charge in essence through four parts and put forward reasonable opinions.The first part of this paper studies the constitution of the crime from the perspective of the traditional "four elements".In terms of the object,this paper holds that the legal interests protected by this crime are the national order of wildlife fasting management.In the objective aspect,we should limit the scope of crime object and crime behavior reasonably based on the principle of modesty of criminal law.When examining the seriousness of the act,we should consider the quantity,frequency,subjectiveness and recidivism.In the subject aspect,this crime is not a special subject crime,natural persons with complete criminal responsibility capacity and legal persons can become the subject of this crime.In the subjective aspect,the doer’s "eating purpose" should not be regarded as more subjective than elements,but should make a comprehensive judgment on "eating purpose" based on objective clues.The determination of the doer’s subjective intention should also include the investigation of the wrong cognition of his illegality,which should be distinguished from the wrong cognition of criminal law and the wrong cognition of pre-law.The second part is about the study of the crime form,the number of crimes and the three major problems of joint crime.In terms of the completion of criminal forms,the actual control of terrestrial wildlife should be regarded as the completion standard for illegal hunting,the reasonable displacement should be regarded as the completion standard for illegal transportation,and the actual delivery should be regarded as the completion standard for illegal purchase and sale.On the determination of the number of crimes,this paper holds that the selective crimes can be punished simultaneously,and if the acts carried out by the doer are connected in means or purposes and closely related in time,they can be considered as multiple crimes.In the determination of joint crime,we should judge the establishment of joint crime based on constitutive elements and define the relationship between principal and subordinate criminals.The third part is the definition of this crime and related charges.This crime and criminal law 341 article 1,2 charges compared,the main difference lies in the object of the crime and the subjective difference,compared with the illegal business crime,illegal business crime is more applicable scope than this crime.The fourth part is the study of the connection of execution of this crime.This article thinks that the crime should set up the administrative preconditions,for the first time to carry out the relevant illegal behavior of wildlife protection and management laws and regulations to give administrative punishment,if the perpetrator after receiving administrative punishment again related illegal behavior,the crime will be punished.This is not only in line with the principle of modesty of criminal law,but also conducive to harmonizing the possible contradiction between wildlife protection regulations and criminal law in the application of this crime.