A Study On The Identification Of The Crime Of Illegal Logging Of The State’s Key Protected Plants

The provisions of the criminal law of China on the crime of illegally cutting state key protected plants are mainly embodied in 344 articles of the criminal law,which refer to the illegal cutting of precious trees or other plants under state key protection in violation of the provisions of the state.The purpose of the establishment of the crime is to protect the precious plant resources of the country through the criminal law.However,in the specific judicial practice,there are some problems in the determination of the crime,and some controversial cases have emerged.The existing problems deserve our further exploration.First of all,it is about the identification of the object of the crime.From the accusation,we can see that the object of the crime is the plant protected by the state,and then from the 344 provisions of the criminal law,we can see that the object of the crime is basically divided into two categories,namely precious trees and other plants protected by the state.With regard to the identification of precious trees,due to the existence of the interpretation of the Supreme People’s Court on Several Issues concerning the specific application of law in the trial of criminal cases of damaging forest resources,the definition of precious trees is relatively clear.In judicial practice,other plants under state key protection mainly refer to the plants in the national key protected wild plants list(the first batch).But the list does not cover all the precious plants that need to be protected completely,which leads to some controversial cases.In addition,through consulting a large number of cases,the author found that there are some controversial issues in the subjective and objective aspects of the crime of illegally harvesting state key protected plants in the judicial trial,and this article will also discuss them in detail.It is gratifying that the 1783 rd meeting of the judicial committee of the Supreme People’s Court on November 19,2019 and the 32 nd meeting of the 13 th Procuratorial Committee of the Supreme People’s Procuratorate on January 13,2020 adopted the reply of the Supreme People’s court and the Supreme People’s Procuratorate on the application of article 344 of the criminal law of the people’s Republic of China(hereinafter referred to as the reply)in On March 21,2020,it was promulgated and implemented.The official reply made detailed Supplementary Provisions on the criminal object and criminal behavior of the crime of illegal logging of national key protected plants,and paid attention to the adaptation of the criminal responsibility and punishment,which provided the basis for solving some difficult problems existing in the judicial practice of the case of illegal logging of national key protected plants,and played an important role in the identification of such cases Effect.This paper analyzes three cases of illegal logging of state key protected plants,i.e."Qin,Cui and Tu",analyzes the relevant problems in the case,draws conclusions,and puts forward personal suggestions,hoping to play a positive role in the identification of the charges.The article is divided into three parts:First,summarize the facts of the three cases of "Qin,Cui and Tu",summarize the basis of the judicial department’s cognizance of the crime of cutting the state’s key protected plants,and summarize the dispute focus of the case.Second,combining with the cases,this paper analyzes the issues involved in the identification of the charges of this crime which are the focus of the controversy: first,the issues related to the identification of the state’s key protected plants in judicial practice;second,the subjective aspects of this crime,whether the perpetrator has the intention of cutting the state’s key protected plants illegally and whether the perpetrator has the cognitive error;third,The determination of the behavior of the perpetrator,by transplanting,whether it is possible to make the plant survive or not can be regarded as less harmful to the society,and the crime can be completed through the proviso of Article 13 of the criminal law.Third,in view of the illegal logging state key protection plant crime in the identification of the existing problems are analyzed and come to a solution.In the three cases in this paper,"Lu’s LAN draft" was retrialed,and the court made a verdict of not guilty.The other two cases were found to constitute the crime of illegal logging of state key protected plants.Especially in the first two cases,in fact,they are the same,and the reasons for the differences are as follows: the first one is about the identification standard of the criminal object of this crime.Although the latest "reply" of the two highs has some supplements,generally speaking,the relevant laws and regulations are not specific enough,which needs to be further clarified.If it can not be proved that the plants harvested by the actor belong to the country clearly defined by law Key protection of plants,the perpetrator can not be found guilty;the second is the subjective aspect of the crime,we should consider the subjective knowledge of the identification and cognitive errors;the third,the perpetrator’s behavior of transplanting plants,the two high has passed the latest "reply" that constitutes illegal logging,but to adapt to the crime and punishment;the fourth,the complete survival of transplanted plants can be used as a cause of crime.In the third case,whether the actor’s objective of public welfare affects the conviction and punishment,and whether the trees he felled belong to the criminal object of this crime need to be identified from the legal theory.Fourth,after the analysis of the above cases,it summarizes the problems in the determination of this crime,and puts forward suggestions for the problems.