Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Relevant Cases Occurring in Sea Waters under the Jurisdiction of China (II)

Updated : 2016-10-26

(Adopted in the 1682nd meeting of the Judicial Committee of the Supreme People’s Court on 9 May 2016, and shall be effective as of 2 August 2016)

Fa Shi [2016] No.17

Announcement of the Supreme People’s Court of China

Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Relevant Cases Occurring in Sea Waters under the Jurisdiction of China (II) has been adopted at the 1682nd meeting of the Judicial Committee of the Supreme People’s Court on 9 May 2016. It is hereby announced and it shall take effect as of 2 August 2016.

The Supreme People’s Court

 1 August 2016

 

In order to correctly hear the cases happened in sea waters under the jurisdiction of China, and to safeguard the lawful rights and interests of parties concerned, pursuant to Criminal Law of PRC, Fisheries Law of PRC, Civil Procedure Law of PRC, Criminal Procedure Law of PRC, and Administrative Procedure Law of PRC, in combination with judicial practice, this Provisions is enacted.

Article 1 Where the parties concerned suffer damage due to ship collision, maritime pollution or other accidents and claim against the infringers to compensate the losses of fishing boats, fishing gears or fishing products and incomes, the people’s courts shall uphold such claims.

Where the parties concerned, in violation of Article 23 of Fisheries Law of PRC, engage in offshore fishing operations without fishing permit, and if the said parties concerned claim for income losses as per the preceding paragraph, the people’s courts shall not uphold such claims.

Article 2 During trial and enforcement work, if people’s court detects illegal acts that need to be handled by relevant entities according to provisions of law, the people's court shall promptly raise judicial suggestions to such entities, and may, if necessary, copy such suggestions to the superior organs or competent administration authorities of the said entities. Where such illegal acts are suspected of constituting criminal offenses, they shall be transferred to criminal investigation departments for handling pursuant to law.

Article 3 Whoever violates China’s regulations on border (frontier) administration and illegally enters China’s territorial waters, and in any of the following circumstances, it shall be deemed as “the circumstances are serious” as prescribed by Article 322 of Criminal Law of PRC: 

(1) Refusing to leave China’s territorial waters after being driven away;

(2) Illegally re-entering China’s territorial waters after being driven away;

(3) Illegally re-entering China’s territorial waters within one year after being given administrative punishments or criminal punishments for previously illegal entering China’s territorial waters;

(4) Illegally entering China’s territorial waters to engage in fishing aquatic products or other activities, but such acts are not serious enough to constitute crimes such as the crime of illegally fishing aquatic products; or

(5) Other serious circumstances.

Article 4 Whoever violates the regulations on protecting aquatic resources and fishes aquatic products within closed fishing areas, during closed seasons (fishing bans) or with prohibited tools or methods, and in case of any of the following circumstances, it shall be deemed as “the circumstances are serious” as prescribed by Article 340 of Criminal Law:

(1) Illegally fishing aquatic products of more than 10,000 kilograms or worth more than RMB100,000;

(2) Illegally fishing fry or gestation parent of aquatic animals of important economic value of more than 2,000 kilograms or worth more than RMB20,000;

(3) Fishing aquatic products of more than 2,000 kilograms or worth more than RMB20,000 within aquatic germplasm resources conservation areas;

(4) Fishing with prohibited tools or methods within fishing closed areas;

(5) Fishing with prohibited tools or methods during closed seasons (fishing bans);

(6) Engaging in fishing operations on high seas with prohibited fishing gears which causes serious influence; or

(7) Other serious circumstances.

Article 5 Whoever illegally engage fishing of coral, tridacna or other precious or endangered aquatic wildlife, and in case of any of the following circumstances, it shall be deemed as “the circumstances are serious” as prescribed by Article 341.1 of Criminal Law of PRC:

(1) The value is more than RMB500,000;

(2) Illegal gaining profits more than RMB200,000;

(3) Causing serious damage to ecological environment of sea waters;

(4) Causing serious international impact; or

(5) Other serious circumstances.

Whoever commits any of the acts prescribed in the preceding paragraph, and in case of any of the following circumstances, it shall be deemed as “the circumstances are especially serious” as prescribed by Article 341.1 of Criminal Law of PRC:

(1) The value or illegal profit reaching more than five times the standards prescribed by paragraph 1 of this Article;

(2) Value or illegal profit reaching the standards prescribed by paragraph 1 of this Article, and causing serious damage to ecological environment of sea waters;

(3) Causing extraordinarily serious damage to ecological environment of sea waters;

(4) Causing extraordinarily serious international impact; or

(5) Other extraordinarily serious circumstances.

Article 6 Whoever illegally purchases, transports or sells coral, tridacna or other precious or endangered aquatic wildlife and the products thereof, and in case of any of the following circumstances, it shall be deemed as “the circumstances are serious” as prescribed by Article 341.1 of Criminal Law of PRC:

(1) The value is more than RMB500,000;

(2) Illegal gaining profits more than RMB200,000;

(3) Other serious circumstances.

Whoever illegally purchases, transports or sells coral, tridacna or other precious or endangered aquatic wildlife and the products thereof, and in case of any of the following circumstances, it shall be deemed as “the circumstances are especially serious” as prescribed by Article 341.1 of Criminal Law of PRC:

(1) The value is more than RMB2,500,000;

(2) Illegal gaining profits more than RMB1,000,000;

(3) Other extraordinarily serious circumstances.

Article 7 Where the species of the precious or endangered aquatic wildlife involved in cases are difficult to ascertain, forensic institutions shall issue expert appraisal opinions, or the institutions designated by competent administrative department of fishery of the State Council shall issue relevant reports.

The value of precious or endangered aquatic wildlife or the products thereof shall be verified in accordance with provisions of competent administrative department of fishery of the State Council. If the verification value is lower than the actual transaction price, the latter shall prevail.

For the purpose of this Provisions, coral and tridacna shall refer to all species of coral and tridacna that are listed as enjoying level I or level II protection by the State in the List of Wildlife Animals Enjoying Priority State Protection, and all species of coral and tridacna included in Appendix I and Appendix II to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, including living and dead bodies.

Article 8 Whoever commits the criminal acts of destroying maritime resources, which at the same time constitutes the crime of illegal fishing, the crime of illegally hunting and killing precious or endangered wildlife, the crime of organizing others to illegally cross the national border (frontier), the crime of illegally crossing the national border (frontier) or other crimes, he shall be convicted of and punished against the crime subject to heavier punishments.

Whoever commits the criminal acts of destroying maritime resources and at the same time commits the crime of smuggling, the crime of obstructing the performance of official duties or other crimes, he shall be handled as per provisions on concurrent punishments against multiple crimes.

Article 9 In terms of the evidence provided by administrative organs during administrative proceedings that is formed outside the territory of China, if it is in compliance with relevant laws of China, it may be admitted as the basis for the people’s courts to ascertain the facts of the cases.

Evidence that falls under any of the following circumstances shall not be admitted as the basis for making decisions on cases in trial:

(1) Where the investigators do not have the right to investigate pursuant to the laws of the host countries;

(2) Where the evidence investigation process is not in compliance with the laws of the host countries, or is in violation of the prohibitions under Chinese laws and regulations;

(3) Where the evidence is incomplete or the evidence safe-keeping process is defective, and the possibility of tampering evidence cannot be ruled out;

(4) Where the evidence provided are photocopies or reproductions which cannot be verified against the originals, and the law enforcement departments of the host countries have not issued official letters certifying that such photocopies or reproductions are consistent with the originals;

(5) Where the procedures for evidence certification prescribed by relevant treaties concluded by and between China and relevant country have not been gone through, or where the evidence has not been notarized in the host country and authenticated by the embassy or consulate of China in that country; or

(6) Other circumstances of inconsistency with the authenticity, legitimacy and relevance of evidence.

Article 10 In case an administrative counterparty engages in fishery operations without lawful fishing permit, and administrative organ is of the opinion that such acts constitute “the circumstances are serious” prescribed by Article 41 of Fisheries Law of PRC, people’s court shall conduct comprehensive examination from the following perspectives, and make a decision thereon:

(1) Whether the administrative counterparty has not obtained fishing boat inspection certificate or fishing boat registration certificate in accordance with law;

(2) Whether the administrative counterparty has deliberately obscured or altered the name or port of registry of relevant vessel;

(3) Whether the administrative counterparty has indicated forged or altered name or port of registry of the fishing boat, or has used a forged or altered fishing boat certificate;

(4) Whether the administrative counterparty has marked the names or ports of registry of other lawful fishing boats, or has used the fishing boat certificates of other fishing boats;

(5) Whether the administrative counterparty has illegally installed facilities to dig and fish for coral and other aquatic wildlife enjoying priority protection of the State;

(6) Whether the administrative counterparty has used methods prohibited by relevant laws, regulations and rules in fishing;

(7) Whether the administrative counterparty has illegally fished aquatic products or the fry or gestation parent of aquatic animals of important economic value, or has fished aquatic products in aquatic germplasm resources conservation zones, in relatively large quantity or value;

(8) Whether the administrative counterparty has conducted fishing within closed fishing areas or during closed seasons; or

(9) Whether the administrative counterparty has other serious circumstances of illegal fishing operations.

Article 11 Where administrative organs take compulsory measures such as prohibiting from departure and designating docking locations against vessels docked at fishing ports that have no vessel name, no port of registry and no vessel certificate, and if administrative counterparties file claims against the said administrative organs on the ground that the said administrative organs have exceeded their statutory authority, the people’s courts shall not uphold such claims.

Article 12 Where a vessel with no vessel name, no port of registry and no fishing vessel certificate engages in illegal fishing operations, and the administrative organ determines that the person in charge of the fishing sites or the actual person-in-charge as the person committing illegal acts after prudent investigation and in the absence of evidence to the contrary, people’s court shall uphold such determination.

Article 13 Where an administrative organ has evidence that an administrative counterparty deliberately destroys evidence by dumping the items carried into the sea or by other means, but the administrative counterparty denies such activities, people’s court may, according to the actual difficulties caused by the acts of the administrative counterparty to the efforts made by the administrative organ to produce evidence, appropriately lower the standards of proof that shall be reached by the administrative organ or decide that the administrative counterparty shall bear the burden to prove the facts in contrary.

Article 14 Foreign nationals, stateless persons and foreign organizations may bring administrative lawsuits in accordance with Administrative Procedure Law of PRC and other relevant laws if they are of the opinion that Chinese departments in charge of maritime administration, public security, customs or fishery administration, their subordinate fishery regulatory authorities and other law enforcement departments have infringed upon their legitimate rights and interests during the administrative law enforcement process.

Article 15 This Provisions shall apply to cases of first and second instances that are not yet closed upon adjudication after the implementation hereof. Before implementation of this Provisions, regarding cases that have already been closed in final instance trial, where the parties apply for retrial or it is decided to initiate the trial supervision proceedings, this Provisions shall not apply thereto.

Article 16 This Provisions shall take effect as of 2 August 2016.