On The Determination Of "Serious Circumstances" In The Crime Of Endangering The Human Genetic Resources

The Amendment(XI)to the Criminal Law formally criminalized the illegal collection of human genetic resources and the smuggling of human genetic resources materials,which has led to more effective protection of human genetic resources in China.As the important content of Article 334(Ⅰ)of the Criminal Law,“Serious Circumstances” play an important role in the determination of this crime,but the simple description in the legislation and the lack of judicial interpretation have increased the difficulties in determining “Serious Circumstances” of this crime.Therefore,it is necessary to further examine the normative content of “Serious Circumstances” of this crime and to make a judgment on its nature and content elements.The “Serious Circumstances” of this crime are the convicted circumstances,which are the constituent elements for the establishment of the basic crime.Although “Serious Circumstances” as the convicted circumstances should be distinguished from the sentencing circumstances in terms of the content of the evaluation,there may be some overlap in the factual appearances externalized by the content,which needs to be analyzed on a case-by-case basis.The legislative expression of“Serious Circumstances” is compatible with the existing binary sanction system and crime constitution system in China,and also regulates the current active criminal legislation in China.There are various views on the nature of the “Serious Circumstances” of this crime.Among them,the “independent constituent element theory” and the “objective punishment condition theory” are obviously inconsistent with the current concept of crime in China,the “overall evaluation element theory” ignores the subjective evaluation element,which contradicts the connotation of overall evaluation,the “class composition element complex theory” is only a one-sided description and summary of the actual legal norms and has lost the critical function of criminal law doctrine.Only the “punishable illegality theory” is closer to the nature of “Serious Circumstances”,which not only emphasizes the examination of the substance of the wrongful act,but also helps to improve the effectiveness of criminal governance of this crime,and at the same time can be adapted and applied according to the “proviso” clause of China,so it is worth advocating.The determination of the “Serious Circumstances” of this crime requires two grasps of the normative purpose of the crime and the judicial interpretation of the class crime,as well as the appropriate interpretation method.The normative purpose is the starting point of the law,which contains the direction and scale of the criminal policy and has an important guiding role in the determination of the statutory crime,while the judicial interpretation of the class crime is similar to this crime in the system,and the reference to the judicial interpretation of the class crime can limit the scope of the judge’s interpretation,in line with the basic cognition of the public.The interpretation of the “Serious Circumstances”of this crime should adopt a combination of subjective and objective interpretations.When the subjective interpretation fails to meet the needs of society,it is possible to break through the legislator’s legislative intent within a reasonable range and criminalize other circumstances that seriously endanger human genetic resources.Although theoretical circles have questioned the judicial practice of using circumstances characterizing personal danger or subjective malice as the convicted circumstances,Article 334(Ⅰ)of the Criminal Law,as a crime formulated to prevent the destruction of human genetic resources in a risk society,is not sufficient to achieve the effect of the criminal law by merely evaluating objective circumstances such as the amount and consequences,nor can it effectively distinguish between criminal and administrative offences.Consequently,the determination of “Serious Circumstances” for this crime requires an overall substantive evaluation by integrating the amount,quantity,frequency and consequences of the offence,as well as whether or not the offence has been repeatedly subject to administrative penalties and special status.