After the implementation of the new judicial interpretations of the "Two Supreme People's Courts", what should we do about the EIA fraud cases that are already under investigation?
Since the "14th Five-Year Plan", the Ministry of Ecology and Environment, together with the Supreme Law, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration for Market Regulation, has carried out special rectification of fraud by third-party environmental protection service agencies for four consecutive years. The Ministry of Ecology and Environment, the Supreme People's Procuratorate and the Ministry of Public Security have jointly built a joint law enforcement mechanism that connects and promotes the "two laws" in an integrated manner, forming a "combination fist" of joint consultation, joint listing and supervision, joint announcement of typical cases, and joint deployment of relevant work., effectively improving the efficiency of supervision and law enforcement.
In August 2023, the Supreme People's Procuratorate and the Supreme Law revised and issued the "Two Supreme People's Procuratorate" Judicial Interpretation (Fa Interpretation [2023] No. 7), pointing out that in the process of environmental impact assessment, environmental monitoring, and carbon emission inspection and testing, third-party environmental protection service agencies The conviction and sentencing standards for crimes providing false certification documents clarify the criminalization criteria for environmental pollution crimes as illegal gains or losses to public and private property of more than 300,000 yuan. According to the provisions of the Supreme People's Procuratorate and the Ministry of Public Security's Regulations on Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)(hereinafter referred to as the "Standards for Filing and Prosecution (II)"), the amount of illegal income from providing false certification documents is 100,000 yuan. If the case is above, a case should be filed for prosecution.
Then, after the implementation of Law Interpretation [2023] No. 7, cases where illegal gains of more than 100,000 yuan but less than 300,000 yuan are suspected of providing false certification documents by third-party environmental protection service agencies are already in the stage of criminal filing, investigation and prosecution. What should I do?
The author believes that, first of all, generally speaking, the crime involving the act of providing false certification documents in the environmental field is a derivative crime of environmental pollution. It infringes on the "intersection" of environmental legal interests and the legal interests of management order. In judicial interpretation, it mainly considers from the perspective of environmental legal interests, that is, taking causing environmental pollution as the substantive requirement; In most cases, third-party organizations commit the act of issuing false certification documents out of temptation of interests. In form, they are not the direct subject of environmental pollution, but in essence they still have indirect intention. They should be based on accurate evaluation of social harmfulness, balance between crime and punishment, and related crimes. Taking into account the balance of penalties and other aspects, the threshold for criminalization should not be lower than the crime of polluting the environment.
Secondly, according to the "Provisions of the Supreme People's Court and the Supreme People's Procuratorate on the Time Effectiveness of Applicable Criminal Judicial Interpretations"(Gao Jian Fa Shi Zi [2001] No. 5) Article 2,"For acts that occurred before the implementation of the judicial interpretation, there was no relevant judicial interpretation at the time of the act. Cases that have not been processed or are being processed after the implementation of the judicial interpretation shall be handled in accordance with the provisions of the judicial interpretation." Therefore, after the implementation of Law Interpretation [2023] No. 7, those who were already in the stage of criminal filing, investigation, and prosecution before then are suspected of providing false supporting documents by third-party environmental protection service agencies. Cases where illegal gains are more than 100,000 yuan but less than 300,000 yuan, the provisions of Article 10 of Law Interpretation [2023] No. 7 shall apply. It is stated that the above-mentioned cases do not constitute providing false certificates because the amount of illegal gains is less than 300,000 yuan. Document crime.
For the above-mentioned cases that no longer constitute the crime of false certification documents, according to the provisions of Articles 163, 177 and 179 of the Criminal Procedure Law, first, during the investigation process, if it is found that the criminal suspect should not be held criminally responsible, the case shall be dismissed; if the criminal suspect has been arrested, he shall be released immediately, issued a release certificate, and notified to the People's Procuratorate that originally approved the arrest; Second, during the prosecution stage, if the criminal suspect has no criminal facts or has one of the circumstances specified in Article 16 of this Law, the People's Procuratorate shall make a decision not to prosecute. In cases where the People's Procuratorate decides not to prosecute, it shall also release the sealing, seizure, and freezing of the property that has been sealed up, seized, or frozen during the investigation; Third, if the person who is not prosecuted needs to be given administrative penalties or sanctions or needs to be confiscated of his illegal income, the People's Procuratorate shall put forward procuratorial opinions and transfer them to the relevant competent authority for handling, and the relevant competent authority shall promptly notify the People's Procuratorate of the handling results; Fourth, if the People's Procuratorate decides not to prosecute a case transferred by the public security organ for prosecution, it shall serve the public security organ with the decision not to prosecute.
At the same time, in recent years, the Supreme People's Procuratorate has made great efforts to deploy and build a connection system between procuratorial supervision and administrative law enforcement, and issued the "Opinions on Promoting the Two-way Connection of Execution and the Supervision of Administrative Violations and Building a Connection System between Procuratorial Supervision and Administrative Law Enforcement"(hereinafter referred to as the "Opinions"). After the procuratorate makes a decision not to prosecute a case in accordance with the law, if administrative penalties should be imposed, the administrative procuratorial department takes the lead in transferring the case to the administrative law enforcement agency, that is,"reverse connection". The aim is to eliminate blind spots in accountability and break the vicious circle of "no punishment, no punishment".
To sum up, after the implementation of Law Interpretation [2023] No. 7, the illegal income of suspected third-party environmental protection service agencies for the crime of providing false certification documents that had been in the criminal filing, investigation and prosecution stages before this was more than 100,000 yuan. If the illegal income is less than 300,000 yuan, according to the provisions of Article 2 of Gao Jian Fa Shi Zi [2001] No. 5, it no longer constitutes the crime of providing false certification documents. At the same time, in accordance with the spirit of the Opinions, Administrative and judicial organs should further actively explore new paths for reverse connection of executions that have entered various links of criminal procedures, and the process mechanism for reverse connection.(Including preliminary consultations between procuratorial organs and public security organs before deciding to transfer them to administrative agencies, transfer of relevant evidence materials, transformation and adoption of evidence, meetings and chambers of commerce in the process of implementing administrative penalties by administrative agencies, and legal supervision, etc.) Carry out substantive advancement, with stronger law enforcement and judicial efforts to jointly promote effective supervision of the market of third-party environmental protection service agencies.
Author's unit: Law Enforcement Brigade of Ecological Environment Bureau of Minhang District, Shanghai City
