I. Basic information about the parties and the defense

Defendant: Zhang Moumou, female, born in 1954, a native of a county in Guangdong Province, Han nationality, illiterate, farmer. He was criminally detained on August 10, 2013 and arrested on November 18, 2013 for suspected crime of deforestation.

Defense: Nan Fang, Lawyer of Guangdong Law Shengbang Law Firm.

Defender: Liu Gaoqiang, Lawyer of Guangdong Yiyue (Yangjiang) Law Firm.

Defendant: Zhang Moying, male, born in 1948, resident of a county in Guangdong Province, Han nationality, illiterate, farmer, was released on bail on September 6, 2013 for suspected crime of deforestation.

Suspected crime: the crime of deforestation

 

II. Introduction of the case

Between July and August 2013, the defendants Zhang Moumou and Zhang Mouying, without the approval of the forestry authorities and without forest harvesting permits, hired a number of workers to harvest pine trees and acacia trees in Daling and Shiguling of a village in Shiqiopu Village Committee, Zhi'ergong Town, Yangxi County, and then sold the trees to a wood factory in the industrial area of Yangxi County City. The Yangxi County Forestry Investigation and Planning Design Team identified that the area of the harvested pine wood was 31 mu, and the area of acacia wood was 19.3 mu, totaling 50.3 mu; the pine wood volume was 47.9 cubic meters, and the acacia wood volume was 39.7 cubic meters, totaling 87.6 cubic meters. on September 6, 2013, the defendant Zhang Moumou surrendered to the Forest Branch of the Public Security Bureau of Yangxi County. on November 11, 2013, the Public Prosecution Bureau concluded that the two Defendants had abusively felled 87.6 cubic meters of forest trees, which had violated the provisions of Paragraph 2 of Article 345 of the Criminal Law of the People's Republic of China, and that the two Defendants should be held criminally liable for the crime of abusive logging of forest trees, and filed a public prosecution with the Yangxi County People's Court.

 

III. Focus of the dispute

   (a), on the logging area how to identify?

   (b) The law and judicial interpretation of the starting point of the huge quantity of deforestation has a certain range, the quantity of deforestation in the middle of the range, in the Guangdong Provincial Higher People's Court did not have a clear opinion on the specific quantity of the case, according to the quantity of huge or large to be recognized and sentenced?

 

IV. Opinions of the Public Prosecution and Defense Counsel

The public prosecution authorities believe that:

(a), Yangxi County Forestry Investigation and Planning Design Team has been identified in accordance with the law, the area of the cut pine wood 31 mu, acacia wood area 19.3 mu, a total of 50.3 mu; pine wood accumulation 47.9 cubic meters, acacia wood accumulation 39.7 cubic meters, a total of 87.6 cubic meters, so the number of involved in the case of indiscriminate deforestation should be determined in accordance with the 87.6 cubic meters;

(b) The quantity of the two defendants' deforestation has reached the sentencing range of huge quantity stipulated by the law, and should be recognized and sentenced according to huge quantity.

Defense counsel argued:

(a), the site investigation transcript and appraisal opinion confirmed that the two defendants had deforested 50.3 mu of forest trees, with a volume of 87.6 cubic meters of storage was seriously flawed and could not be used as the basis for a verdict.

(ii) The Public Prosecution charged that the volume of deforestation had reached a huge quantity, and that the charge had no legal basis and was wrong.

V. Defense views and reasons

The indictment accuses the defendant Zhang Moumou of committing the crime of deforestation, the facts are unclear, the evidence is insufficient, and the charge cannot be established.

(The following are some of the defense opinions)

(I), on the alleged area of logging, the facts are unclear, insufficient evidence

Allegations that defendants Zhang Moumou and Zhang Mouying harvested acacia and pine wood over a total area of 50.3 acres, with a total volume of 87.6 cubic meters are unclear, the evidence is insufficient, and the allegations cannot be substantiated. Rationale:

The public prosecution authorities of the above charges based on the evidence is the site investigation and inspection transcripts and appraisal opinions, but to the two pieces of evidence can not be used as a basis for determining the defendant Zhangmoumou, Zhangmouying logging area of forest trees. Reason:

1, no defendant site identification logging area

The evidence in this case shows that the defendant ZhangMouMou, ZhangMouYing after the crime are not to the logging site on the logging scope of identification, the investigating authorities only require the two defendants on the logging of forest trees localized photographs for identification.

2, from the situation of witnesses:

No eyewitnesses to the defendants Zhang Moumou and Zhang Mouying harvesting the scope of the scene identification of forest trees;

Witnesses Lu Moumou, Zhang Moumou, Chen Moumou can only testify to the weight of the harvested forest trees, the actual scope of harvesting is not clear, and the weight of the forest trees can not be directly calculated to the exact volume of forest trees.

The above shows: the lack of two defendants on the logging range of the scene identification, there is no eyewitness to the two defendants logging range of the identification, the scene investigation and inspection transcripts and appraisal of the logging area and volume are no factual basis for the conclusion is obviously a lack of authenticity, legality and relevance.

3, from the defendant ZhangMouMou and ZhangMouYing on the logging situation of confession:

The two defendants in court many times, clear confession: do not recognize the appraisal of the area and volume of harvested trees, the actual logging area is not as much as the appraisal.

Although in the pre-trial statement, there are defendants ZhangMouMou and ZhangMouYing recognized the appraisal opinion in the logging area of 50.3 acres and the volume of 87.6 cubic meters of records, but the two defendants are illiterate, do not read the content of the transcript of the ability of the investigators in the transcript of the interrogation (or interrogation transcripts) in the record of the content of the content of the investigators and the investigators of the content of the readings with the two defendants of the statement, the two defendants can not judge, but also There is no basis for judgment, and we have no way of knowing and confirming it, so the statements of the two Defendants before the court cannot be used as evidence to determine the area of logging and the volume of storage.

Witnesses Shao Heng Minou and Deng Xiu Yu testified:

Defendant Zhang Yuehua purchased Shiguling forest land area is 2 acres, before being arrested and did not cut the 2 acres of the range, much less beyond the 2 acres of the range of felling, was arrested and released did not carry out further felling.

5, the site survey and inspection transcript itself has significant flaws

(1), from the time:

Site survey and inspection transcripts show that: the time period of the survey is August 9, 2013 10:25 to 11:30, site survey and inspection transcripts produced by Chen Moujia, photographer is Liang Moumou, the survey location is the village of stone wells Daling and Shiguling.

Investigators of Zhang Moumou first interrogation transcripts show: the time period of inquiry is August 9, 2013 10:24 to 12:02, the inquiry record producer is Chen Moujia, inquiring person is Liang Moumou, inquiring place is Yangxi County Public Security Bureau Forest Branch.

In comparison, it is not difficult to find that the same August 9, 2013 morning between 10:00 and 12:00, the same Liang Moumou and Chen Moujia, but at the same time at the scene for the investigation and inspection of the cut forest land and the defendant Zhang Moumou questioning, and the location of one in the mountains of the village of Shijing, and a Forest Public Security Bureau in the questioning room.

Unless the investigators Liang Kexing and Chen Kicheng have the art of separation, how can two investigators do different things at the same time and in different places.

Explanation: the scene investigation and inspection transcript itself there is inauthenticity, does not exclude the possibility of false investigation and inspection, can not be used as a basis for determining the facts.

(2), from the results:

The volume of harvested trees need to be calculated by professionals through the statutory procedures to arrive at, but the site survey and inspection transcript shows that the investigators in the site survey and inspection at the time of the accurate area and volume of harvested trees, which is obviously not in line with common sense.

6, the appraisal opinion has a major flaw

On August 13, 2013, the appraisal authority issued an appraisal opinion, concluding that the area of harvested pine wood was 31 mu, with a volume of 47.9 cubic meters, and the area of Acacia wood was 19.3 mu, with a volume of 39.7 cubic meters.

August 9, 2013 site survey and inspection transcripts show that the day of the survey and inspection of the harvested forest pine area of 31 mu, the volume of 47.9 cubic meters, acacia wood area of 19.3 mu, volume of 39.7 cubic meters.

That is to say, the day of the site investigation has not been identified by the pine, acacia has been harvested by the accurate volume, the authenticity of this figure itself is questionable, and after 4 days after the appraisal body issued by the appraisal, pine, acacia has been harvested by the volume of the volume of the results of the site investigation and there is no difference, we have every reason to suspect that the appraisal is a complete copy of the results of the site investigation transcripts.

7, the woodland does not exclude the possibility of others logging

Zhang Moumou confessed, in the stone Gu Ling Zhang Moumou buy forest land near the villagers Deng Mou on logging, and Deng Mou is the local forestry bureau director's relatives, appraisal of the logging area involved in most of the Deng Mou on logging.

Zhang Mouying also confessed, in addition to Zhang Moumou and Zhang Mouying, there are other people in the same ridge logging.

Witness Shao Moumou confirmed that there were other people logging in Shiguling.

Zhang Moumou, Zhang Mouying's statement and witness Shao Moumou's testimony together confirmed: in the mountain ridge in question, there are other villagers in the harvesting of trees, not only Zhang Moumou and Zhang Mouying in the harvesting, the public prosecutor's office will be all the area of the harvesting is recognized as the two defendants harvesting, and the objective facts do not match.

As mentioned above, there is a false possibility of field investigation, thus, the field investigation records of the survey of the area and volume of harvested trees there is the same possibility of untruth, followed by the appraisal of the complete copy of the area and volume of harvested trees there is a false possibility of the authenticity, legality and relevance of the same is doubtful, so the appraisal obviously can not be used as a basis for this case to determine the area and volume of harvested trees. The authenticity and relevance of the opinion is equally doubtful.

 

Note: After the first hearing, the Public Prosecution Office provided a new evidence material - the Yangxi County Forestry Investigation and Planning Design Team's "Note on the Conversion of Timber Weights to Volume and Accumulation" dated February 13, 2014 - to confirm that the logging in question was a wetland pine weighing 31,200 kilograms, and that the converted volume of the volume of accumulation was 35.3741 cubic meters.

The defense examined the evidence material in the second hearing, and objected to the authenticity, legality and relevance of the Note:

First, there is no evidence in this case to prove that the defendant Zhang Yuehua and Zhang Taiying cut down the type of pine is wetland pine, and the type of pine itself amounted to hundreds of types, in addition to wetland pine, there are horsetail pine, torch pine, black pine, greasewood, red pine, Huashan pine, white pine and other types.

Yangxi County Forestry Investigation and Planning Design Team in the absence of any evidence directly recognized the case of pine is wetland pine, obviously lack of factual basis, can not be established; in the absence of evidence in accordance with the wetland pine made by the volume and volume conversion can not be used as a basis for this case to determine the volume and volume of felling pine wood.

Second, the design team, after consulting a number of mills in Yangxi County, concluded that the weight of each cubic meter of wetland pine was 2,800 pounds.

Whether the consulting behavior occurred, whether the consulting result is true, whether the weight per cubic meter of wetland pine expressed by the wood factory consulted is scientific, there is no evidence to prove that, in this case, the design team's conversion of the volume of timber and the volume of timber based on the volume of the conversion of the volume of the volume of storage in the authenticity, legality and relevance are not in line with the requirements of the evidence, and can not be used as a basis for the determination of the volume of cut down pine timber volume and the volume of storage. The court shall adopt the above statement as the basis for the determination of the volume and volume of pine timber cut.

If the court adopts the above statement to determine the volume of cut pine wood, it will directly lead to errors in the determination of the facts and the judgment, so the court is requested to be careful in its determination.

(b) With regard to the allegation that the volume of harvested forest trees reached a large quantity, this allegation has no legal basis and is erroneous.

The second paragraph of Article 345 of the Criminal Law (Amendment 4 of the Criminal Law, implemented on December 28, 2002) stipulates that: If, in violation of the provisions of the Forestry Law, a larger quantity of forests or other trees are felled indiscriminately, the person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or control, and shall be fined concurrently or singly; and if the quantity is huge, the person shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall be fined concurrently.

This provision does not specify the specific quantitative standards for larger and huge quantities, and the Guangdong Provincial Higher People's Court has not determined the specific quantitative standards for local implementation. The standard to which reference can be made at present is the Supreme People's Court's "Interpretation of Several Issues Concerning the Specific Application of the Law in the Trial of Criminal Cases of Destruction of Forest Resources" (implemented on December 11, 2000), which stipulates in Article 6 that the indiscriminate logging of forest timber "in huge quantities", with a starting point of 50 to 100 cubic meters or 2,500 to 5,000 young trees.

In other words, at present, the "huge quantity" of deforestation is a quantity range of fifty to one hundred cubic meters, and in the absence of a clear and specific quantity opinion from the Guangdong Provincial Higher People's Court, and based on the principle of being favorable to the defendant, deforestation of one hundred cubic meters can only constitute a huge quantity, and the quantity of deforestation alleged by the public prosecutor was The public prosecutor accused the quantity of forest trees illegally felled to be eighty-seven point six cubic meters, but accused the quantity to be huge, obviously violated the principle of favoring the defendant, and also had no legal basis, the accusation is wrong.

Ⅵ, the court found and judgment results

The court examined and found that: the witness Deng Moumou's testimony confirmed that it was he who handled the sale of pine trees along the collectively owned Daling in Shijing Village to the defendant Zhang Moumou at a price of 12,000 yuan for felling, without stating how many acres of forest had been sold, and without signing a contract on the sale of the forest, and he had not been to the felling site. Witness Shao Moumou testimony confirms that he sold the acacia wood of nine families in Shijing Village Shiguling to the defendant Zhang Moumou, sold 7,000 yuan, in July 2013 began to cut, to the beginning of August to cut the end, did not specify how many acres of acacia wood was sold. Site investigation transcripts and pictures, public security officers just shoot the scene 6 pictures by the defendant Zhang Moumou, Zhang Mouying identification, and did not take the two defendants to the scene to identify the area of deforestation four to, and the two defendants denied that deforestation of 50.3 acres of pine and acacia wood. The appraisal opinion confirmed that there were 50.3 mu of deforested trees, including 31 mu of pine trees, 19.3 mu of Acacia, 47.9 cubic meters of pine trees and 39.7 cubic meters of Acacia, for a total of 87.6 cubic meters.

In summary, the court examined that: although the appraisal opinion confirmed that 50.3 acres of forest was deforested, but there is no evidence to confirm that 50.3 acres of deforested is the defendant Zhang Moumou, Zhang Mouying deforested, and the village head Deng Moumou did not explain how many acres of forest was sold, but also did not go to the scene to see how many acres of forest was deforested, the witness Shao Moumou testified in court, confirming that only 2 acres of forest was sold to Zhang Moumou and did not felling! Finished, the existing evidence provided by the prosecution is not enough to confirm the defendant ZhangMouMou, ZhangMouYing deforested 50.3 acres of forest, the volume of 87.6 cubic meters of facts, so the court on the prosecution accused of deforestation of 50.3 acres of area, the volume of 87.6 cubic meters of facts are not confirmed. This court has identified the defendant ZhangMouMou, ZhangMouYing abusive deforestation accumulation of 35.3741 cubic meters of facts (is the second session of the court to submit new evidence, based on the weight of the wood converted to volume and volume of the note, confirming YangXiXian forestry investigation planning and design team of 31,200 kilograms of pine wood converted to volume 22.2857 cubic meters of wood, volume 35.3741 cubic meters of accumulation).

Yangxi county people's procuratorate accused of deforestation amount is huge improper, should be corrected. The defendant Zhangmoumou after the crime to the public security organs, truthfully confessed to the facts of his deforestation, is the surrender, according to the law can be mitigated punishment.

According to the defendant's criminal circumstances as well as repentance, the application of probation will not jeopardize society again, according to the law can be pronounced probation. The court trial committee discussed and decided, "the People's Republic of China criminal law" article 345, paragraph 2, article 52, article 53, article 67, paragraph 1, article 72, article 73, "the supreme people's court on the trial of criminal cases of destroying forest resources on the specific application of the law of several issues of the interpretation of the" article 6 of the provisions of the judgment:  

   Defendant Zhang Moumou commits the crime of indiscriminate logging of forest trees and is sentenced to one year's imprisonment, suspended for one year and six months, and fined five thousand yuan.

   Defendant Zhang Mouying committed the crime of abusive logging, sentenced to eight months' imprisonment, one year's probation, and a fine of five thousand yuan.

After the verdict, the two defendants did not appeal, the Procuratorate did not protest, the verdict has come into effect.

VII. Case summary

The defense of this case is unclear facts, insufficient evidence, the accusation can not be established acquittal defense, although the court did not make a verdict of acquittal, but the defense of the felling area is not the area of 50.3 acres of the accusation of the public prosecutor's office, 87.6 acres of the storage capacity of the opinion to be adopted, for the next session of the court after the supplement of the "description", the defense questioned the authenticity of this evidence, legality and relevance, but the court still adopted the evidence, accordingly found that the two defendants constitute a crime. The court still adopted the evidence, according to which the two defendants constitute a crime, and ultimately the two defendants applied probation. It can be said that the defense has both successes and regrets, and finally the defendant Zhang Moumou and his family gave a high evaluation of the work of the defense, and to the lawyer sent a banner and letter of thanks.

In general, the lawyer in the case of deforestation, pay attention to two aspects, one is accused of deforestation of the area and volume there is no sufficient evidence to prove, including there is no defendant's confession, at the scene of the identification; There is no witness testimony and at the scene of the identification; There is no sufficient documentary evidence, such as the contract and so on confirmed; There is no objective, true, lawful site investigation records; Identification opinions are Objective and legal, whether there is a correlation between the identification results and the defendant's behavior, and whether there is any contradiction between the above evidence. Because of the crime of deforestation is based on the volume of logged trees to determine whether to pursue criminal liability and sentencing range, so the defender in handling this type of case, the volume of evidence for the logged trees should pay special attention to the volume of evidence, there is a need to personally check the scene, in order to be logged trees to do a good understanding of the situation; Secondly, China's laws and judicial interpretations of the deforestation of a huge number of huge although there is a starting point of the magnitude of the ( Indiscriminate logging of forest trees "huge quantity", to 50 to 100 cubic meters or young trees 2,500 to 5,000 as a starting point), but the provinces are not necessarily in the specific number of specific opinions, such as the Guangdong Provincial Higher People's Court in this area has not issued opinions, so if the case of the logged forest trees just in the range of the starting point of the huge quantity of accumulation The amount of forest trees felled is seventy-nine cubic meters or four thousand young trees, then the defender has to start from the principle that is conducive to the sentencing of the defendant and make the defense that the quantity should be found to be larger rather than huge, so that the defendant's sentencing will be lowered from the charge of more than three years and less than seven years to less than three years, which not only reduces the sentencing, but also lays the groundwork for probation to be applied.