The first case of selling artificially bred parrots without crime The gospel of bird lovers?

Two years ago, Wang Peng, a 32-year-old native of Jiujiang, Jiangxi Province, accidentally raised parrots while working in Shenzhen. In early April 2016, Wang Peng sold two "little sun" parrots he hatched to Xie Moumou.

The Bao'an District Court of Shenzhen City found that the two "Little Sun" parrots that were sold were protected by international conventions and laws, and Wang Peng was convicted of illegally selling rare and endangered wild animals and sentenced to five years in prison. The Shenzhen Intermediate People's Court rendered a final judgment: Wang Peng was convicted of illegally purchasing and selling rare and endangered wild animals and sentenced to two years' imprisonment and a fine of 3,000 yuan.

Although the final verdict was three years less than the previous five-year prison sentence, Wang Peng's wife and defense lawyer argued that Wang Peng should not be guilty.

Previously, Red Star News reported that at the end of April 2018, Qiu Guorong, owner of an aquarium shop in Guixi City, Jiangxi Province, bought eight parrots and four wrens from a flower and bird shop operated by Markham Dragon, and was subsequently taken away by the police on suspicion of illegally buying and selling endangered wild animals. Eight parrots and four wrens are protected species in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

On December 21, 2018, Qiu Guorong was sentenced to two years in prison for illegally buying and selling endangered wild animals, and appealed against the verdict. On September 11, 2019, the Yingtan Intermediate People's Court (hereinafter referred to as the Yingtan Intermediate People's Court) commuted Qiu Guorong's sentence to 1 year and 6 months imprisonment with a suspended sentence of 2 years in the second instance, and then reported to the Supreme People's Court for approval in accordance with the law. On April 10, 2020, the Jiangxi Provincial High People's Court issued a criminal ruling and remanded it to the Yingtan Intermediate People's Court for retrial.

A (2020) Gan 06 Xing Zhong No. 92 judgment obtained by the Red Star News reporter shows that after investigation, the source of the 8 Fei Xi lovers parrots involved in the case can be traced back, which is an artificial breeding source and a non-wild source. The Fehi's couple parrot in this case has been domesticated and bred and commercially used for many years in Henan and other regions, and the domestication and breeding technology is mature, has become a scale, and the number has increased, forming a large industrial chain. In summary, Qiu Guorong's act of acquiring and selling the Fei Xi couple parrot involved in the case was obviously minor and the harm was not large, and it was not appropriate to be regarded as a crime.

Behind each case is a history of blood and tears, each case promotes the rule of law, I hope that the process of rule of law progress will be less trial and error, and the speed will be faster, and no more people and families will pay a painful price for it!

Guest: Lawyer Zheng Xiaojing

Beijing Zhongdun Law Firm

Qiu Guorong's defense lawyer

Fang Hong: Our program has paid attention to the case of Wang Peng in Shenzhen who was sentenced to 5 years in prison in the first trial for selling two parrots, and 2 years in prison in the final trial. The reason is that Wang Peng especially loves parrots, so he raised and bred a large number of parrots himself, and later sold two "little sun" parrots. As a result, Wang Peng was convicted and sentenced. There are still many people across the country who have been convicted and sentenced for being like Wang Peng, and you speculate that how many people may be sentenced for selling artificially bred parrots?

Lawyer Zheng Xiaojing: The number should be quite large, but the specific number is not counted. Because after the "Wang Peng Parrot Case", there were other similar parrot cases throughout the country, and their common feature was to be sentenced for selling artificially bred parrots. Especially after the COVID-19 pandemic, some bird lovers across the country are at risk of being prosecuted or sentenced.

Fang Hong: After being found guilty in such a case, many people who keep parrots are at their own risk, and some who sell parrots will feel that they may be like Wang Peng at any time, because they love birds and be sentenced. What do you think is the impact behind Wang Peng's conviction in this case?

Lawyer Zheng Xiaojing: It will directly affect the entire wildlife industry, from production to sales. What is destroyed is the development of the entire industry, and the impact is very large. For example, the country's largest flower and bird breeding base, Henan Shangqiu raises couple parrots, and now it has been sold to three pieces and no one wants it. Some parrot farmers can't sell their birds and raise bird food, so they give parrots a day to eat, and a large number of parrots starve to death. Thousands of parrot farms, the number of dead parrots is several million, so the direct destruction is the production industry, the breeding industry of wild animals.

Since captive birds are not allowed to be sold, and if they are sold, they are sentenced, so will captive turtles or other animals also face the danger of imprisonment? This self-endangerment has spread to other wildlife industries.

Fang Hong: The crime of illegally selling rare and endangered wild animals stipulated in the Criminal Law is actually aimed at protecting these wild animals. But now it seems that because there is such a crime, which applies to those artificially bred parrots or other animals, it not only does not play a role in protecting wild animals, but even destroys and threatens the survival of these artificially bred "wild animals". Qiu Guorong is the first case in China to be found innocent of the acquisition and sale of artificially bred parrots, what do you think of the court's acquittal verdict?

Lawyer Zheng Xiaojing: I think this acquittal verdict will surely become a classic verdict. It can play a leading role in the trial of similar cases throughout the country. The biggest significance is to call on the entire judicial team to protect the development of the artificial breeding wildlife industry. Be good at distinguishing between artificial breeding and wild wild, and be sure to treat two different species strictly. Artificial breeding is artificial population, and wild population is wild population.

Our country does not have artificial populations on the same penal protection as wild populations. Because in the special law of the "Wildlife Protection Law", it is specially stipulated that artificially bred wild animals can be sold and used, and for artificially bred wild animals, the first breeding link implements a licensing system, that is, administrative licensing, as long as it is licensed by the competent authority for breeding, it can be sold with a special logo.

Since the special marking system has not yet landed in most artificial breeding industries, some places now stipulate that they must be sold through business approvals. The Wildlife Protection Law does not stipulate that administrative permits are required for business operations. Therefore, in my opinion, the use of the licensing system for business activities is contrary to the provisions of the Administrative Licensing Law and is an administrative act that exceeds the authority. This will inevitably increase the sales hassle of the artificial breeding wildlife industry. For example, some birds will be relatives, and they can't sell it when the approval documents come down, because no one wants them if they don't kiss them. Therefore, artificially adding some unnecessary administrative acts is not conducive to the development of the industry.

"The law prohibits it without authorization", and if you take 10,000 steps back, even if there is no business approval to sell, it is a general administrative violation, which is not equal to a criminal act. However, in the process of law enforcement, general administrative violations are elevated to criminal acts, and the sale of artificially bred wild animals is regarded as a criminal act.

The reason why the Jiangxi parrot case can become a classic and can play a leading role is that it strictly distinguishes between artificial populations and wild populations, and the two populations are not equally protected by criminal law. Secondly, a strict distinction is made between general illegal acts and criminal acts, such as the purchase and sale of artificially bred parrots without a business license, as an administrative violation, directly determined not to constitute a criminal act, which can promote the development of the artificial breeding parrot industry, and also promote the development of the entire industry of artificial breeding of wild animals, which is actually beneficial to the country and the people.

We all know that if a family has a criminal case, it is equivalent to a catastrophe, the family is destroyed, the family is ruined, and the reputation is ruined. China has had allusions to parrots learning their tongues for thousands of years, and parrots have long been companions for humans. After a thousand years, society has progressed, and the act of raising parrots and selling parrots is still regarded as a criminal act, which is obviously contrary to common sense, common sense, and common sense.

Fang Hong: Does this mean that bird lovers can boldly sell birds and will no longer be held criminally responsible?

Lawyer Zheng Xiaojing: The ideological concepts and professional level of law enforcement personnel still need to be improved, including the Wildlife Protection Law, which should be further improved, and mechanical justice is not excluded. The relevant judicial interpretations of the Supreme People's Court equate the artificial breeding of wild animals with the same criminal law protection as wild wilds.

Because of this judicial interpretation, some people in judicial practice use judicial interpretations to identify the act of buying and selling parrots as the criminal act of illegally purchasing and selling precious and endangered wild animals, which violates the principle of criminal law.

Because artificial breeding is not a wild animal in the first place, and some wild animals are very cheap to breed artificially, such as couple parrots, three dollars a piece. Some parrots were allowed by the Ministry of Forestry to be artificially bred in 2003, and the industry has developed for more than 20 years, and now the number has increased greatly, and they are not endangered. The court's protection of animals that are neither precious nor endangered nor wild as precious and endangered wild animals, and the identification of sales, that is, trading, as the crime of illegally purchasing and selling rare and endangered wild animals, is a violation of the principle of criminal law and a violation of people's common sense.

What is the social harm to the purchase and sale of artificial birds? Just like the chickens and ducks raised by the family were sold, because the ancestors of chickens, ducks and pigs also came from pheasants, ducks and wild boars.

Fang Hong: For a case like Wang Peng's, he was sentenced to two years in prison for selling two small sun parrots he raised, and such a judgment is actually based on a relevant judicial interpretation, that is, artificially bred animals are also treated as wild animals. Will the emergence of this case promote the revision of relevant judicial interpretations and avoid similar Wang Peng being mechanically enforced?

Lawyer Zheng Xiaojing: I think this interpretation of the Wang Peng case is an enlarged interpretation and violates the principle of criminal law. Because article 341 of the Criminal Law clearly stipulates that the object of protection of wild animals is wild wild animals, it should not be artificially expanded to include domestication and breeding.

In recent years, with the criminalization of the artificial breeding of birds, the relevant departments of the state are paying attention to such cases and are actively revising them. On December 18, 2020, a "Guiding Opinions on Illegal Trade in Wild Animals" was issued, and the guiding opinions have actually improved, especially the second article, which clearly stipulates that the criminal targets of illegal trade in wild animals are severely cracked down on, and it is strictly limited to wild wild animals stipulated in the first paragraph of article 341 of the Criminal Law.

Article 3, severely cracking down on the criminal act of illegally purchasing wild animals for the purpose of consumption, also strictly limits it to the animals provided for in the first paragraph of article 341 of the Criminal Law, that is, wild wilds.

Article 9 also further clearly stipulates that comprehensive consideration should be given to whether the wildlife trade constitutes a crime and when sentencing, especially considering whether the animals involved in the case are artificially bred and the endangered population, the survival status in the wild, the artificial breeding situation, and whether they are included in the list of artificially bred wild animals under key national protection. Including the means of behavior, the degree of damage to wild resources and whether the consumption of wild animals is harmful to human health, etc., it is comprehensively evaluated for its social harm.

That is to say, if it is found out according to law that the animal involved in the case belongs to artificial breeding species, it is not endangered at all, after many years of artificial breeding, the number has increased greatly, and it has formed a large-scale and industrialized effect, and at the same time it does not survive in the wild at all, but lives in the farm and lives at home, which is indeed artificial breeding. Even if it is not included in the list of wildlife protection, but due to the maturity of domestication technology, it can be included in the list of artificially bred wild animals in the future, and the means of people's behavior is to buy, is alive, there is no actual damage, the purchase is to love it, raise it as a pet, there is no damage to wild wild animals, there is no food, there is no harm to the human body.

Comprehensive evaluation of the purchase and sale of this artificial bird has no social harm, and since there is no social harm, it should not be criminalized. Because to determine that an act constitutes a crime, the first consideration is whether the act is socially harmful and should not bear criminal responsibility.

We expect that local law enforcement agencies, including the judiciary, will do a good job of implementing Articles 2, 3 and 9 of the Guiding Opinions and being able to identify the trade in captive-bred wild animals as innocent.

Fang Hong: Whether it is the Tianjin Aunt stall or the Yaoshen case, behind this is the expanded interpretation of the criminal object and does not consider the issue of harm, the judgment of this case has reference significance for judicial adjudication should follow the principles of jurisprudence and criminal law?

Lawyer Zheng Xiaojing: Yes, it can play a broad reference role. If similar cases are found to be innocent, it will promote the sales of the entire artificial breeding parrot industry, which will inevitably lead to artificial breeding. Because the purpose of our artificial breeding of wild animals is to use artificial breeding of wild animals, rather than catching wild animals in the wild to use, so that we can really play a role in protecting wild animals.

As to whether any one act constitutes a crime, it is necessary to consider the criminalization of the crime. Because from the criminal law, the act of selling artificial birds without a business license has never been regarded as a criminal act. Therefore, whether an act constitutes a crime or not should also consider its social harm, and if there is no socially harmful behavior, it should not be considered a criminal act.

If the artificial breeding wildlife industry is to develop, it must also be in accordance with the Wildlife Protection Law, because article 25 of the Wildlife Protection Law clearly stipulates the implementation of a system of name recording and labeling of artificially bred wild animals. These two systems have not yet landed. Therefore, what I would like to call on is that all wild animals with mature artificial breeding technology should be fully included in the list of national key protection for artificial breeding as soon as possible.

Secondly, as soon as possible to promote all kinds of artificial breeding of wild animals identification system, the purpose of selling with the logo is to ensure traceability, so as to promote the legal trade in wild animals, to promote the development of the wildlife industry, but also to protect wild animals and maintain ecological balance.

Fang Hong: After the Wang Peng case, the reporter's investigation found that the flower and bird markets in many cities such as Beijing were openly selling parrots of the "Little Sun" species. On the Web, there are more such trading activities. For example, on Taobao, a store sales show that more than 6,000 successful transactions have been made. It is conceivable that in addition to Wang Peng, how many people have been convicted of loving birds, raising birds, buying birds, and selling birds.