Study On The Difficult Problems Of The Crime Of Rare And Endangered Wildlife

In February 2021,the Supreme People’s Court and the Supreme People’s Procuratorate issued the "Supplementary Provisions on the Implementation of the Criminal Law of the People’s Republic of China(VII)"(hereinafter referred to as the "Supplementary Provisions on Crimes(VII)"),which made a difference to Article 341,Paragraph 1 of the Criminal Law.The crime of the paragraph has been adjusted: the crime of illegal hunting,killing of precious and endangered wild animals and the crime of illegal acquisition,transportation,and sale of precious and endangered wild animals,precious and endangered wild animal products are changed to one crime of endangering precious and endangered wild animals..As an important crime for protecting precious and endangered wildlife resources,domestic research has paid little attention to this crime.However,there are many difficult problems to be solved urgently in the judicial application of this crime.This thesis introduces the difficult problems existing in the application of this crime through typical cases,and proposes the correct path to solve the difficult problems.Apart from the introduction and conclusion,this thesis is divided into five parts.The first part is an overview of crimes against precious and endangered wild animals.This part first defines the definition of wild animals and precious and endangered wild animals,and then clarifies the necessity of establishing this crime by expounding the harm of behaviors that endanger precious and endangered and wild animals.Then,by tracing the source of the crime,the development process and value orientation of this crime are preliminarily explored,which lays the groundwork for the research on the following difficult problems.The second part is the basic problem of criminalizing the crime of endangering precious and endangered wild animals.This part discusses that the premise of this crime is the violation of the pre-law,and clarifies the scope of the pre-law.Due to only relying on the provisions of the prepositional law,it is impossible to clearly distinguish between the crime and the non-crime,and it is impossible to effectively divide the execution boundary.Therefore,by further discussing the criminal nature of this crime,this part sorts out and analyzes relevant theories such as social danger theory,order violation theory and legal interest infringement theory,and proposes that when convicting this crime,we should use the legal interest infringement theory to distinguish between guilt and non-crime and execution boundaries.The third part is the difficult problem of the object and behavior of the crime of harming precious and endangered wild animals.On the one hand,the object of this crime has two difficult issues:artificially bred populations and how to identify the dead bodies of precious and endangered wild animals.This part combines typical cases to classify and discuss artificially bred populations from the factual and legal levels,and analyzes how to identify the dead bodies of precious and endangered wild animals from the textual meaning and the normative protection purpose of this crime.On the other hand the behavior of this crime has two difficult problems: the behavior of picking up the dead bodies of precious and endangered wild animals and the behavior of holding precious and endangered wild animals.This part firstly defines the connotation and extension of the harmful behavior of this crime,and then analyzes the characterization of the behavior of picking up dead animals from the correlation between the purpose of protecting the legal interests of this crime and the behavior mode of this crime based on typical cases;The connotation and denotation have analyzed whether the possession behavior belongs to the criminal behavior of this crime.The fourth part is the difficult problem of illegal understanding of the crime of endangering precious and endangered wild animals.This part,based on the necessity of illegality cognition,clarifies the content of the illegality cognition of the crime,and puts forward the identification of the illegality cognition of the crime in judicial practice: positive identification,reverse exclusion,and the scope of identification should be wide and not appropriate.There are three specific paths.The fifth part is the difficult problem of the punishment applicable to the crime of endangering precious and endangered wild animals.In this part,the main penalty types,term of sentence and application of probation of defendants sentenced in 300 cases were counted and the statistical results were formed.By summarizing the status quo of penalty application reflected by the statistical results,this thesis analyzes the two difficult problems of whether the penalty should be applied leniently or strictly and the applicable standards of fine penalty are different,and puts forward two solutions of appropriately increasing the penalty intensity and reasonably grasping the applicable standards of fine penalty.