Study On The Illegal Elements Of The Crime Of Endangering Precious And Endangered Wild Animals

Article 341 of the Criminal Law of the People’s Republic of China stipulates the crime of endangering precious and endangered wild animals.Due to the unclear protection of legal interests and illegal elements of the crime,in judicial practice,there has been a phenomenon that the species in the appendix of the Washington Convention as a trade convention are treated as "precious and endangered" wild animals as described in the criminal law,without distinguishing between wild individuals and artificial breeding individuals,and imposing similar and the same penalties for acts with different illegalities,This leads to the current situation that the crime and punishment are incompatible.As an abstract dangerous crime,this crime needs to fully explain the protection of legal interests of this crime through the double-layer view of legal interests.Specifically,the underlying legal interest of this crime is a series of values that wild animals use for human beings: the economic value of artificially bred individuals,which are mainly used for pets,meat,leather and other market exchange purposes in the market,should be protected;The artificial breeding individuals and wild individuals used to maintain the number of species are mainly used to protect the ecological value.The legal interests of the barrier layer of this crime need to be discussed in detail according to the specific types of behaviors,including the types of illegal hunting,killing and transportation,and the survival status and conditions of protecting precious and endangered wild animals;The types of acts of illegal acquisition and sale shall protect the exclusive right of the state to buy and sell wildlife based on the ownership of wildlife;The types of illegal acquisition,transportation and sale of wildlife products shall protect the state’s transportation and trading system for animal products.Only when the act infringes the legal interests of the barrier layer and the legal interests of the back layer at the same time,it is worthy of criminal punishment.Using this protection of legal interests can solve the problems in practice.This paper is mainly divided into three parts.The first part mainly discusses the problems and causes of applying this crime in judicial practice.In judicial practice,the species listed in the appendix of the Washington Convention as a trade convention are treated as "precious and endangered" wild animals as described in the criminal law,without distinction between wild individuals and artificially bred individuals,and with similar and identical penalties for acts with different illegalities.The main problem causing the above phenomenon is that the protection of legal interests of this crime has not been clarified,and the criminal form of this crime has not been clarified.The second part mainly discusses the protection of legal interests and criminal forms of this crime.The existing theories on this crime are difficult to coordinate the interests of wild animals and human beings.This paper uses the theory of double legal interests of abstract dangerous crimes to reveal the double legal interests of this crime.The back legal interests of this crime are a series of values used by wild animals for human beings.The artificially bred individuals are mainly used for pets,meat,leather and other market exchange economic purposes in the market,and their economic values are protected;The artificial breeding individuals and wild individuals used to maintain the number of species are mainly used to protect the ecological value.The legal interests of the barrier layer of this crime need to be discussed in detail according to the specific types of behaviors,including the types of illegal hunting,killing and transportation,and the survival status and conditions of protecting precious and endangered wild animals;The types of acts of illegal acquisition and sale shall protect the exclusive right of the state to buy and sell wildlife based on the ownership of wildlife;The types of illegal acquisition,transportation and sale of wildlife products shall protect the state’s transportation and trading system for animal products.Only when the act infringes the legal interests of the barrier layer and the legal interests of the back layer at the same time,it is worthy of criminal punishment.This part also distinguishes the legal and natural forms of this crime under different types of conduct.The third part mainly uses the protection of legal interests and criminal forms of this crime to reveal the illegal elements of this crime and solve practical problems.The CITES appendix cannot guide the criminal law to identify rare and endangered wild animals.If the wild animals are not listed in the National Key Protected Wild Animals List,they can be identified according to the red list of endangered species provided by the World Union for the Conservation of Nature(IUCN).For artificially bred and internationally popular species used for economic purposes,the sale and transportation of these species should not be recognized as a crime because the act does not infringe the underlying legal interests;Similarly,if an act does not infringe both the underlying legal interest and the blocking legal interest,it cannot be punished.