07

2021

-

11

Lawyer Yu Hailiang: Several Issues to Pay Attention to in Defending the Crime of Dangerous Work

The crime of dangerous operations, as one of Article 134 of the Criminal Law, is a newly added charge in the "Amendment to the Criminal Law of the People's Republic of China (11)", which was officially implemented on March 1, 2021. The crime of dangerous operations includes relevant behaviors in the field of safety production that have not yet caused major casualties or serious consequences, but have practical dangers, and is included in the scope of criminal law crackdown, with criminal responsibility pursued. Due to the short implementation time of this crime, the number of completed cases is relatively small, and there has not yet been a referenceable judgment rule.


The crime of dangerous operations, as one of Article 134 of the Criminal Law, is a newly added charge in the "Amendment to the Criminal Law of the People's Republic of China (11)", which was officially implemented on March 1, 2021. The crime of dangerous operations includes relevant behaviors in the field of safety production that have not yet caused major casualties or serious consequences, but have practical dangers, and is included in the scope of criminal law crackdown, with criminal responsibility pursued. Due to the short implementation time of this crime, the number of completed cases is relatively small, and there has not yet been a referenceable judgment rule.

 

In May of this year, the lawyer team of Yu Hailiang from Guangdong Legal Shengbang Law Firm undertook a case involving a large chemical storage enterprise in F City, G Province, suspected of dangerous operations. After Chen was released on bail during the investigation phase, the prosecutor's office ultimately made a decision not to prosecute him. This case is an earlier and more typical case of dangerous work crime in China since the implementation of the Criminal Law Amendment (11). The author believes that there are several issues worth paying attention to when handling such cases.

 

Case Review

In mid April 2021, the Emergency Management Bureau of F City received a report stating that a large storage enterprise in S District, GB Storage Co., Ltd. (hereinafter referred to as "GB Company"), had suspected hazardous chemicals containing a large amount of gasoline at its storage site. After inspection, it was confirmed that the hazardous chemicals were illegally blended light circulating oil. After verification, it was found that GB Company stored and blended light circulating oil without legal approval or permission, engaged in dangerous goods operation, storage and other operations. The S District Branch of F City Public Security Bureau filed a case against GB Company for the crime of dangerous operations, and Chen, as the CFO of GB Company, was also criminally detained.

 

The public security organs believe that Chen, as one of the main responsible persons of GB Enterprise, illegally stored and mixed light circulating oil without legal approval or permission during production and operation, which poses a real risk of major casualties or other serious consequences. They believe that Chen is suspected of committing a dangerous business crime.

 

Question 1 to note: Constituting this crime requires a real risk of major casualties or other serious consequences

Zhang Yijian, Deputy Director of the Criminal Law Department of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, believes in his interpretation of the "Eleventh Amendment to the Criminal Law" that "the crime of dangerous operations will move forward the stage of criminal punishment, and for particularly dangerous and major hidden danger behaviors, criminal responsibility will also be pursued if there are no actual harmful results. This situation is rare in the criminal law, and it is a breakthrough in legislative technology and concepts in the field of safety production crimes, The establishment of the crime of dangerous operations must strictly define the criminal conditions:

 

The first requirement for constituting this crime is that there is a real danger of major casualties or other serious consequences. In production operations, there have already been major hazards, such as "roof falling" and "leakage". Although there were no significant consequences in the end, the reasons for not having significant consequences were some due to being stopped in a timely manner, some due to timely and effective rescue, and some completely due to luck or objective accidental reasons. Only such "imminent" major dangers can be recognized as "real dangers", and general and numerous violations of safety production management regulations cannot be included in criminal sanctions.

 

The second is to strictly regulate the three situations that constitute the crime of dangerous operations. Specifically, it includes: (1) closing or destroying monitoring, alarm, protective, life-saving equipment, facilities that directly affect production safety, or tampering with, concealing, or destroying their relevant data and information; (2) Those who are ordered by law to suspend production or business, stop construction, stop using relevant equipment, facilities, or places due to the existence of major accident hazards, or immediately take corrective measures to eliminate hazards, but refuse to implement them; (3) Engaging in highly hazardous production activities such as mining, metal smelting, construction, and the production, operation, and storage of hazardous materials without legal approval or permission. Only behaviors that meet the above three specific circumstances constitute cost crimes.

 

Specifically, in this case, the public security organs determined that GB Company is suspected of the crime of dangerous operations on the basis of the third situation mentioned above, which involves unauthorized production, operation, storage, and other highly dangerous production activities involving safety production without legal approval.

 

Question 2: Differentiation between the Crime of Dangerous Work and the Crime of Illegal Business Operation

The first item of Article 225 of the Criminal Law stipulates that "unauthorized operation of monopoly, monopoly goods, or other restricted items stipulated by laws and administrative regulations" is one of the circumstances of the crime of illegal business operation. This item sometimes coincides with the third situation listed in the crime of dangerous operations, which involves engaging in highly dangerous production activities such as mining, metal smelting, construction, and the production, operation, and storage of hazardous materials without legal approval or permission. The crime of illegal business operations has two sentencing levels, namely "less than five years" and "more than five years". Compared to the crime of dangerous operations, which only has one level of "less than one year", the crime of illegal business operations is clearly a serious crime. Before the implementation of the Criminal Law Amendment (11), many behaviors that could have been classified as dangerous operations were classified as illegal business operations. For example, the common act of selling finished oil at small gas stations without approval or permission, which used to be characterized as illegal business operations, is now characterized as dangerous operations, which is clearly more advantageous for the perpetrator. When the charges overlap, the defender should strive to persuade the investigators to make a favorable determination for the parties involved in the case.

 

Question 3 to pay attention to: Using unit crime as the defense point, defending innocence from the perspective of identity and job nature

Article 31 of the Criminal Law stipulates: "If a unit commits a crime, a fine shall be imposed on the unit, and the directly responsible supervisory personnel and other directly responsible personnel shall be punished." Therefore, in cases deemed as unit crimes, natural persons shall only punish the directly responsible supervisory personnel who have played a role in determining, approving, instructing, condoning, directing, etc. in the crimes committed by the unit, And directly responsible personnel who have committed crimes and played a significant role in unit crimes.

 

In this case, the warehousing and blending of light circulating oil by GB Company, combined with the evidence in the case, can be deemed as a unit crime. But as a CFO of GB Company, Chen is not involved in the specific warehousing, production, operation and other work of GB Company, so he cannot be considered as the "directly responsible person" for the specific crime committed by the unit. Is it possible to constitute a "directly responsible supervisor" to hold him criminally responsible? The author believes that such a determination cannot be made for at least two reasons:

 

Firstly, Chen's position at GB Company is not at a high level and does not have the authority to make business decisions, approve, and command the company. Although Chen is the head of the finance department of GB Company, GB Company also has multiple functional departments such as the administrative department, commercial department, and engineering department, and the finance department is just one of them. At the same time, there are multiple responsible persons in each functional department, including Vice General Manager, General Manager, Vice Chairman, Chairman, etc. Chen, as the Chief Financial Officer, does not have the authority to make decisions, approve, and direct the company's business.

 

Secondly, Chen is only performing general job responsibilities at GB Company and does not have direct responsibility for the company's hazardous operations. When a unit commits a crime and holds its supervisory personnel criminally responsible, the target of accountability is the "directly responsible supervisory personnel", but not all supervisory personnel are held criminally responsible. If the perpetrator is only a general supervisor in the unit, and their specific work content is not directly related to the criminal behavior, they should not be recognized as "directly responsible supervisors". In this case, Chen, as the CFO of GB Company, did not participate in the specific business of the company. He only reviewed the company's business contracts and financial payments. He performed the company's general job responsibilities. In his daily business contract review, Chen could not find any illegal blending or storage of oil products in the company's storage site, Therefore, it cannot be determined that Chen is the directly responsible supervisor for the crime of dangerous operations, and he shall be held criminally responsible.

 

Question 4 to pay attention to: Propose corporate compliance suggestions, assist the company in establishing a compliance system, and strive for corporate compliance without prosecution

Since the beginning of this year, the Supreme People's Procuratorate has repeatedly issued articles mentioning the compliance issues of enterprises involved. For example, in June 2021, nine departments including the Supreme People's Procuratorate, the Ministry of Justice, and the Ministry of Finance jointly issued the "Guiding Opinions on Establishing a Third Party Supervision and Evaluation Mechanism for Compliance of Enterprises Involved in Cases (Trial)". Based on the results of rectification, evaluation, supervision, and inspection of the enterprises involved, enterprises that meet the compliance conditions can make a decision not to sue. One important reason why enterprises commit the crime of dangerous operations is the lack of an effective compliance organization system and a regulatory system to prevent legal risks in their operations. Only by establishing a sound compliance system can we close loopholes in the production and operation management of enterprises and prevent similar criminal legal risks from happening again. When handling such cases, defenders can proactively request the enterprise to make compliance commitments and propose compliance plans, apply to the procuratorial organs to initiate the "compliance non prosecution procedure" against the involved enterprise, such as requiring the enterprise to issue compliance plans such as the "Compliance Commitment Letter" and "Enterprise Compliance Execution Report", actively supervise the enterprise's compliance, and timely communicate with the investigators, Timely report the execution status of the enterprise in implementing the compliance plan to the procuratorate, in order to strive for a non prosecution of the involved enterprise.

 

In recent years, the dangerous goods explosion accidents of Tianjin Port Ruihai Company and the Jiangsu Xiangshui "3.21" major explosion accident have paid a heavy price for the safety of people's lives and property. It is believed that this scene has also touched the hearts of legislators. The addition of the crime of dangerous operations has added a solid barrier to the occurrence of similar accidents. The author also expects all production and operation units to always tighten the string of safe production and operation. After all, safety is no trivial matter, and the responsibility is heavier than Mount Tai!

annotation

 Zhang Yijian, "Main Provisions of the Criminal Law Amendment (11) and Its Development in Criminal Legislation".