On November 29, 2019, the “China Environment News”, the official media of the Ministry of Ecology and Environment, published a news report in the “Inside and Outside the Case” column of the 8th edition of the newspaper’s rule of law section – “Why was a pollution case in Puning dismissed?” ”, reported in detail the content of the Jieyang Intermediate People’s Court’s ruling that the original judgment of an environmental pollution case handled by our environmental lawyer team was unclear and some of the facts were unclear and the evidence was insufficient, and the original judgment was revoked and remanded for a new trial.
Why was a pollution case in Puning dismissed? ?
The defense lawyer believes that sole proprietorships should not be subject to “double fines” and the evidence chain for secretly discharging wastewater containing toxic substances is insufficient.
After the parties recently received the judgment from the second instance court to be remanded for retrial, Chen Yongru, a lawyer at Beijing Yingke (Guangzhou) Law Firm, as the entrusted lawyer, commented that this case fully reflects the environmental justice The author’s insistence on applying the principles of evidence-based adjudication and the principle of innocence of guilt sent a clear signal of the rule of environmental law.
What kind of case is this?
Why did the second instance court revoke the original judgment?
The first instance found that the defendant had set up a private hidden pipe to discharge toxic and harmful substances and was guilty of environmental pollution.
The judgment of the People’s Court of Puning City, Guangdong Province on this case’s criminal incidental civil environmental public interest litigation case shows that the defendant Wu Mouwang is the investor and actual operator of a printing and dyeing factory in Puning City. The factory obtained its industrial and commercial business license on May 29, 2008, and successively hired workers including the defendants Wu Moumou, Xiao Moumou, Yang Moumou, Zhang Moumou, and accomplice Chen Moumou for printing and dyeing production. Among them, Xiao Moumou was hired as the deputy director of environmental protection and leader of the sewage treatment team of the factory in March 2017.
In order to reduce the cost of sewage treatment and avoid supervision, the defendant Wu Mouwang privately set up a hidden pipe in the primary sedimentation tank of the factory’s sewage treatment and connected it to the pipes outside the factory, instigating the defendant Wu Mou. A certain group of people illegally discharged production wastewater and were investigated and dealt with by the Puning Municipal Environmental Protection Bureau and Puning Municipal Public Security Bureau many times.
From July 2012 to January 7, 2017, the printing and dyeing factory and Wu Mouwang were prosecuted by the Puning Municipal Environmental Protection Bureau and the Puning Municipal Public Security Bureau for illegal pollutant discharge and other activities. Punished 17 times, Wu Moumou was administratively punished once.
Between August 2017 and June 6, 2018, Wu Mouwang directed and arranged for the defendants Xiao, Wu, Zhang, and Yang to move the factory to Part of the wastewater generated during the production process is directly discharged outside the factory through private hidden pipes, and then flows into Lianjiang. At the same time, a large plastic pipe is connected to the electric pump, and the electric pump is used to pump out the sludge generated during the factory’s production process from the primary sedimentation tank, and directly discharge it out of the factory through the large plastic pipe, seriously polluting the surrounding environment. By 2018 It was seized on June 6.
Detected by the Puning Environmental Protection Bureau monitoring station: the chemical oxygen demand in the sewage from a water pipe outlet on the southwest side of the printing and dyeing factory It is 948 mg/L, sulfide is 0.58 mg/L, and aniline is 1.22 mg/L. The above indicators all exceed the standard, among which “aniline” is a toxic and harmful pollutant.
After identification and evaluation, from 2013 to May 2018, the printing and dyeing factory illegally discharged wastewater and caused damage to the ecological environment of Lianjiang amounted to 464,798.71 yuan. This environmental damage identification and assessment work matters The sexual cost is 61,200 yuan, and the ecological damage appraisal fee is 191,200 yuan, totaling 717,198.71 yuan.
On April 29, 2019, the Puning Municipal People’s Court issued the first-instance verdict. The defendant’s unit, a printing and dyeing factory in Puning City, was sentenced to be guilty of environmental pollution and sentenced to a fine of RMB 1 million. The defendant Wu Mouwang was convicted of environmental pollution and was sentenced to two years and six months in prison and fined RMB 100,000. The other four suspects were sentenced to fixed-term imprisonment ranging from one year to one year and three months, and fines ranging from 2,000 yuan to 7,000 yuan. The criminal incidental civil environmental public interest litigation ruled that the defendant unit, a printing and dyeing factory in Puning City, should pay compensation for ecological and environmental damage of more than 470,000 yuan.
The parties appealed on the grounds that the main facts were unclear and the application of law was wrong.
With such a heavy sentence, is there any hope for a second trial?
Due to dissatisfaction with the judgment, the parties appealed to the Jieyang Intermediate People’s Court and entrusted lawyers Chen Yongru and Chen Yanwen of Beijing Yingke (Guangzhou) Law Firm to represent a printing and dyeing factory in Puning City respectively. and Wu Mouwang’s attorney. After reviewing the files and studying the case, the defender believed that the main facts found in the first instance were unclear and the application of law was wrong, and put forward the following defense opinions.
01
This case should not punish both companies and individuals.
Article 2 of the “Sole Proprietorship Law of the People’s Republic of China” clarifies that a sole proprietorship is not an enterprise with independent legal personality. Article 1 of the Supreme People’s Court’s “Interpretation on Issues Concerning the Specific Application of Laws in the Trial of Unit Crime Cases” (Fa Interpretation [1999] No. 14) clearly stipulates that sole proprietorships that constitute unit crimes must be sole proprietorships with legal person status, excluding those who do not Individual industrial and commercial households with legal person status, sole proprietorships, etc. The court of first instance identified a printing and dyeing factory in Puning City, a sole proprietorship invested by Wu Mouwang, as the defendant unit, and sentenced it to the crime of environmental pollution and fined it RMB 1 million. This is obviously inconsistent with the currently effective basic laws and the judicial interpretation of the Supreme People’s Court. Contradictory.
02
The first instance found that the defendants had “two”He has received more than two administrative penalties within the past two years for violating national regulations by discharging, dumping, and disposing of radioactive waste, waste containing infectious disease pathogens, and toxic substances.” This behavior is seriously inconsistent with the facts. The defendant has not verified within two years. The act of discharging, dumping, and disposing of the aforementioned substances at one time.
After reviewing the files, it was found that the criminal investigation volumes (5) and (6) of the case showed that the defendant received administrative penalties Among them, only COD exceeding the standard, sulfur dioxide exceeding the standard or chroma exceeding the standard was involved. There was not once a verification of “discharge, dumping or disposal of radioactive waste, waste containing infectious disease pathogens, toxic substances”, and not once due to “radioactive waste, Records of administrative penalties imposed for the discharge, dumping and disposal of waste and toxic substances containing infectious disease pathogens.
In addition, according to the “Toxic and Hazardous Atmospheric Pollutants” published by the Ministry of Ecology and Environment List (2018)” and “List of Toxic and Hazardous Water Pollutants (First Batch)”, especially the Puning Municipal Environmental Protection Bureau’s certification of toxic and hazardous pollutants on page 56 of Volume (7), it can be seen that all the substances involved in the aforementioned exceeding standards are Non-toxic and harmful pollutants.
03
Monitoring personnel use plastic bags of unknown origin when sampling Samples were collected and the wastewater from the appellant’s biochemical pool was not sampled and tested. As a result, the conclusion that the “anilines” detected in the test report were caused by the appellant as the main evidence in the first instance lacked uniqueness and the causal relationship was unclear, so it could not be proved. The complete chain of evidence that the appellant secretly discharged wastewater containing toxic substances “aniline”.
In addition, the defender also questioned issues such as the cost of identification and assessment of ecological environmental damage.
The second instance adopted the prosecutor’s suggestion
The original verdict was revoked and the case was remanded for a new trial.
Not long ago, the Jieyang Intermediate People’s Court formed a collegial panel in accordance with the law and held a public hearing on this case. The Jieyang Intermediate People’s Procuratorate and Puning City People’s Procuratorate each assigned two prosecutors to appear in court to support the prosecution.
The prosecutor of the Jieyang Intermediate People’s Procuratorate who participated in this trial agreed with the opinions put forward by the defense lawyer during the court debate, took the initiative to confirm that the prosecution facts were unclear and the evidence was insufficient, and suggested that the court remand Retrial.
After hearing the opinions of the defender, the Jieyang Intermediate People’s Court adopted the prosecutor’s suggestion and believed that some of the facts identified in the original judgment were unclear and the evidence was insufficient. According to the “People’s Republic of China” According to the provisions of Article 236, Paragraph 1, Item (3) of the Criminal Procedure Law, the original judgment was ruled to be revoked and remanded for retrial.
As for the outcome of this judgment, the relatives of the parties concerned He was deeply gratified and somewhat surprised by Chen Yongru. He commented that in this case, it was rare for the prosecutor to support the lawyer’s defense opinions in court, which reflected the local judicial department’s implementation of the rules of evidence adjudication and strict compliance with the law in collecting, fixing, preserving, and The modern judicial civilization thought of examining and using evidence is a typical case that abandons the presumption of guilt, severe punishment and other outdated and backward concepts.
“As Li Ganjie, Minister of the Ministry of Ecology and Environment, said, to fight the battle against pollution, one word that needs to be repeatedly emphasized is ‘according to the law and regulations’. This is true in the field of law enforcement, and even more so in the judicial field. So.” Chen Yongru said. </p
