| As an important part of natural resources,wild animal resources play a self-evident role in maintaining the balance and stability of ecosystem as well as human survival and development.In recent years,China has carried out a series of legislative activities related to wildlife protection,such as the promulgation of the Wildlife Protection Law,highlighting the special protection of rare and endangered wildlife in the Criminal Law,promulgation of relevant judicial interpretations,and the recent adoption of the Amendment(XI)to the Criminal Law in2020.The Supplementary Provisions on the Determination of Charges in the Criminal Law(VII)passed in 2021 also further adjusted and improved the charges related to the protection of rare and endangered wildlife in the Criminal Law.All these legislative activities are sufficient to show that China’s determination and strength to protect rare and endangered wildlife resources are constantly improving.However,through the statistical analysis of the cases of illegal hunting and killing of rare and endangered wildlife in China in the past two years,it can be found that there are still many difficult to ignore problems in the identification of this behavior by judicial organs.First,the investigation of the subjective knowledge of the perpetrator is not comprehensive enough.In the practice of judicial authority is difficult to judge the behavior person subjective knowledge,the current law has not stipulated in the corresponding criteria for recognition of the subjective knowledge,combined with the complexity of the real cases,lead to the judicial organs of the perpetrator is often subjective knowledge inspecting is not complete or not,tend to deny the offender illegality cognition subjective knowing that there are corrosive.Second,it is difficult to identify the number of crimes when the doer commits several crimes.When the doer’s behavior overlaps with other criminal behaviors,the judicial organ’s understanding of the identification of the number of crimes is biased,and it is easy to make a not very reasonable verdict.Thirdly,there are some defects in the sentencing standard,and there are many legal but unreasonable sentencing results.When sentencing the acts of hunting and killing different kinds of rare and endangered wild animals,it is difficult to be fair and reasonable by relying only on the quantity standard.Moreover,the sentencing standard fails to distinguish between "hunting" and "killing" and fails to take into account the difference in the harm degree of the two acts.To solve these problems in the judicial practice,first of all,of the perpetrator should be paid great attention to the judicial organs of subjective knowledge,to realize the principle of "ignorance not exemption" deficiency,set up a scientific system of advanced illegality cognition theory,and considering various factors on the presumption to what actor’s subjective knowledge.Secondly,it is necessary to make clear the boundary between illegal hunting and killing of rare and endangered wild animals and other cross crimes,and to accurately identify the number of crimes when one act or multiple acts offend several crimes.Finally,the quantity standard in the sentencing standard should be supplemented and improved to some extent,such as applying the "quantity ratio method" and adjusting the quantity standard regularly.At the same time,the "hunting" and "killing" behaviors should be distinguished,and the behavior of hunting but not killing can be considered as a kind of mitigating penalty circumstances. |
