Xuancheng People's Procuratorate

Criminal appeal review decision

Xuan Jian Xing Shen Fu Jue [2020] No. 1

The complainant is Zhang Moumou, female, born on * * *, 1959, with resident ID card number of 3404031959 **************, Han nationality, living in * * Community, Tianjia'an District, Huainan City, and now serving his sentence in Anhui Women's Prison. He is the original victim.

Consignee: Mr. Cheng, born on * * *, 1956, with resident ID card number of 3404030956 ************, Han nationality, lives in * * Community, Tianjia'an District, Huainan City. He is Zhang's lover.

The complainant Zhang Moumou, because Ji Moumou is suspected of intentionally destroying property, refuses to accept the decision of not prosecuting made by the People's Procuratorate of Xuanzhou District, Xuancheng City on December 9, 2019 January 14, 2020 To lodge a complaint to the Court in the form of a general letter. The reasons for appeal are: 1、 The damaged trees in this case belong to the legitimate property of the complainant. Ji, the person who was not prosecuted, cut down the trees in this case without the consent of the complainant, which infringed on the complainant's legitimate property rights and interests; 2、 Ji has subjective intention, and the permission of relevant personnel afterwards only strengthens the continuous implementation of Ji's criminal behavior under the guidance of intentional criminal intention; 3、 Xuancheng City * * Office, Xuancheng City * * Company and other units are not the competent forestry authorities specified in the Forest Law, and have no right to authorize any unit or individual to cut down the trees in this case, and the relevant responsible person of the unit should be investigated for legal responsibility.

The Institute found through reexamination that on January 4, 2019, the respondent Ji XX (deputy director of the * * office of the * * company in Xuancheng City, the person in charge of the construction site) cut down trees under the high-voltage line due to the need of the * * project. After Yang XX of the * * department of the * * company in Xuancheng City (the * * project property unit) asked Chen XX, the full-time deputy director of the * * office in Xuancheng City, for permission, Employ workers to cut down the trees contracted by the victim, Mr. Zhang, in the forest farm of * * Village, Xuancheng City. It is identified that the volume of standing trees of loblolly pine felled is 45.2772 cubic meters, and 26 schima superba trees are felled, with a total price of 25776 yuan.

After reexamination, the Court believed that the acts of Ji and the company of * * in Xuancheng City did not constitute the crime of deliberately destroying public and private property, and the decision of the People's Procuratorate of Xuanzhou District, Xuancheng City not to prosecute was in line with the law. The reasons are as follows.

First, it constitutes the intentional destruction of public and private property specified in Article 275 of the Criminal Law For crime, the perpetrator must have the subjective intention to destroy property (including direct intention and indirect intention). And the crime of intentionally destroying public and private property is often out of (but not limited to) revenge, anger, jealousy, hatred, planting, framing or destroying the reputation of others, causing negative impact on others, or out of complex motives such as dissatisfaction with work and treatment. In this case, Ji only directed the workers to cut down according to the work arrangement of Xuancheng * * Company, which is an act of executing the order. From the scope of his command to cut down, it can be seen that all the trees he required the workers to cut down were trees near the high-voltage line that affect the power on safety, which did not exceed the scope of the unit's instructions, and he strictly complied with his work responsibilities, There is no evidence to prove that he destroyed other people's property for some personal motivation and purpose. In accordance with the agreement signed between Xuancheng * * Company and Xuancheng * * Office, in order to ensure the power on safety of the project due to the need of the construction period, Xuancheng * * Company arranged employees to cut down trees that affect the power on safety, and there was no evidence to prove that they destroyed other people's property for some personal motivation and purpose.

In addition, in the identification of other persons directly responsible for unit crimes, it is generally inappropriate to investigate the criminal responsibility of persons who are assigned or ordered by unit leaders to participate in certain criminal acts as persons directly responsible. Therefore, even if it is doubtful whether the * * Company of Xuancheng City constitutes evidence of unit crime, Ji should not be identified as "directly responsible person" and bear criminal responsibility.

Second, the criminal law stipulates the crime of intentional destruction of property, which aims to protect the rights and interests of the property rights subject by protecting public and private property. However, before the company of * * Xuancheng City arranges quarter to be responsible for felling, it has signed an agreement with the office of * * Xuancheng City, stipulating that * * Xuancheng City is responsible for coordinating the settlement of compensation for trees and other matters and remaining problems, Prepare for compensation; Xuancheng * * Company also took a positive attitude and behavior towards compensation after felling, Therefore, the act of felling is not intended to cause property loss to the forest owner. Moreover, in May 2020, Xuancheng * * Company has paid 280000 yuan of compensation to Mr. Cheng (Mr. Zhang's lover), and Mr. Cheng has also issued a letter of understanding. The amount of compensation has far exceeded the value of the harvested trees recognized by the Price Certification Center, which proves that the main rights and interests of the owner of the trees have been protected. Therefore, the cutting behavior has not violated the legal interests of the protection of the crime of intentional destruction of property.

Third, According to Article 54 of the Electricity Law, plants that have been planted before the power facility protection zones are demarcated according to law and that hinder the safety of power facilities shall be pruned or felled. Therefore, although Zhang has legally obtained the ownership of the forest trees in the accident area before the construction of the project, the reason why Xuancheng * * Company arranged Ji to be responsible for the cutting is that the trees near the high-voltage line affect the power on safety, and the cutting meets the relevant legal requirements.

Fourth, Xuancheng City** The company believes that the place where the incident occurred has been expropriated by the municipal government, and before the quarter of felling, the company did not find out whether there was a forest cutting license, so it had certain negligence, but the negligence is not the subjective intentional form of the crime of intentional destruction of property, and cannot constitute the crime of intentional destruction of property. And according to the existing evidence, Ji repeatedly asked for instructions from Xuancheng City * * Office through Yang before cutting, commanded the cutting range to comply with the power on safety standards, and comprehensively judged that Ji had done a reasonable duty of care. The People's Procuratorate of Xuanzhou District, Xuancheng City has reviewed and put forward procuratorial suggestions according to law, requiring it to take effective measures to promote relevant work.

The Court decided to maintain The People's Procuratorate of Xuanzhou District, Xuancheng City decided not to prosecute and did not support the complainant Zhang's appeal 。

October 9, 2020