Guiding Case No. 211 of the Supreme People's Court: Ordering replanting and reforestation to restore the environment is within the scope of administrative punishment
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Guiding Case No. 211
Tongren City Wanshan District People's Procuratorate v
Forestry Bureau of Wanshan District, Tongren City
An administrative public interest litigation case of non-performance of forestry administrative management duties
(Discussed and passed by the Adjudication Committee of the Supreme People's Court, released on December 30, 2022)
Key words: administrative/administrative public interest litigation/forestry administration/connection between administrative punishment and criminal punishment/environmental restoration in special functional areas
Referee Points
1. Where the offender's same conduct violates both the administrative law and the criminal law and should be punished, the administrative organ shall not revoke the administrative punishment already imposed because of the transfer of the case when transferring the case to the public security organs. Where administrative organs make administrative punishment decisions after the criminal judgment takes effect on administrative punishment matters not covered by the criminal judgment, the people's courts shall support it.
2. Where the offender does not bear responsibility for ecological environment restoration in the criminal judgment, the forestry and other administrative departments shall promptly order them to perform the restoration obligations in accordance with law, and if the offender does not perform or does not fully perform, they shall organize performance on their behalf. Where forestry and other administrative departments fail to perform their legally-prescribed duties of supervision and management of ecological restoration, and the administrative public interest litigation plaintiff requests that they perform their duties in accordance with law, the people's courts shall support it.
3. If the ecological environment of the special functional zone is damaged, it shall be restored in situ in principle. Where the person obligated to restore or the person performing on behalf of the person claiming to make repairs in another place, but cannot prove that the in-situ restoration is impossible or necessary, the people's court will not support it.
Relevant Laws
Articles 74 and 81 of the People's Republic of China Forest Law (revised in 2019) (Articles 10 and 44 of the People's Republic of China Forest Law, amended in 2009 are applicable in this case)
Article 35 of the People's Republic of China Administrative Punishment Law (revised in 2021) (Article 28 of the People's Republic of China Administrative Punishment Law amended in 2017 is applicable in this case)
Basic facts of the case
In April 2014, the defendant Shen Zhongxiang invested in the establishment of a one-person company, Wuling Agriculture and Wood Company, and served as the legal representative. From May to July 2014, on the pretext of building planting and breeding farms, the company hired a construction team to use excavation machinery to strip off surface vegetation in the Koukoushan Group of Meihua Village, Chadian Street, Wanshan District, Tongren City, Guizhou Province, and Ma'anshan, Daping Village, Daping Township, Wanshan District, Guizhou Province, resulting in the destruction of surface vegetation and the exposure of rocks. After identification, 276.17 acres of forest land were destroyed, including 49.38 acres of key public welfare forests, 72.91 acres of general public welfare forests, 108.93 acres of key commercial forests, and 44.95 acres of general commercial forests. The functions of the public welfare forest involved in the case were set as soil and water conservation and water conservation. During the trial of the first instance of this case, some of the destroyed forest land was newly planted with Masson pine seedlings, and the seedlings were low and yellow, and the surface of the ground was dried up and broken; The water conservation public welfare forest has not been treated in any way, and the mountain rocks are exposed, and the gravel is piled up, which is shaped like the Gobi.
In January 2015, the Wanshan District Forestry Bureau of Tongren City (hereinafter referred to as the Wanshan District Forestry Bureau) transferred the case to the Wanshan Branch of the Tongren Municipal Public Security Bureau on suspicion of constituting the crime of illegal occupation of agricultural land, but the public security organs withdrew the case after filing and investigating. The Wanshan District Forestry Bureau then made an administrative penalty decision against Shen Zhongxiang and Wuling Agricultural and Wood Company: ordering them to restore the original state within a time limit (the time limit was not specified) and imposing a fine of 1841134 yuan, but the punished people failed to perform. On January 20, 2016, the Wanshan Branch of the Tongren Municipal Public Security Bureau reopened the case for investigation. The next day, the Wanshan District Forestry Bureau revoked the above-mentioned administrative penalty decision. In December 2016, the Wanshan District People's Court of Tongren City, in the (2016) Qian0603 Xingchu No. 67 Criminal Judgment, found the defendant Shen Zhongxiang guilty of illegally occupying agricultural land and sentenced him to two years in prison and a fine of RMB 50,000. After the judgment took effect, the People's Procuratorate of Wanshan District, Tongren City, issued a procuratorial recommendation to the Wanshan District Forestry Bureau, suggesting that it perform its duties of protecting and supervising forest resources in accordance with the law, and ordered Shen Zhongxiang to restore his original state within a time limit, and imposed a fine of 10 yuan to 30 yuan per square meter. The Wanshan District Forestry Bureau replied in writing that because Shen Zhongxiang was serving a prison sentence, the company was closed, and the personnel were disbanded, so it was impossible to implement the regreening; The Forestry Bureau plans to partially reafforest, and replant and replant the plots that are difficult to reforest; No fines shall be imposed in accordance with the principle of non-punishment in one case.
The procuratorate filed an administrative public interest lawsuit on the grounds that the Wanshan District Forestry Bureau had neither imposed an administrative penalty on Shen Zhongxiang, nor had it taken effective measures to replant and replant, and had failed to perform its duties of ecological and environmental supervision, resulting in the continued existence of the destruction of forest land and serious damage to the local ecological environment, requesting that the Wanshan District Forestry Bureau's failure to perform its regulatory duties in accordance with the law be illegal and that it be ordered to perform its environmental protection supervision duties in accordance with the law.
Adjudication Results
On September 29, 2017, the Banzhou District People's Court of Zunyi City, Guizhou Province rendered the (2017) Qian0321 Xingchu No. 97 Administrative Judgment: The defendant Wanshan District Forestry Bureau of Tongren City shall perform the statutory duties of supervision and management in accordance with the law for Shen Zhongxiang's destruction of the Meihua Village Pass Mountain Group of Chadian Street, Wanshan District, Tongren City, and Ma'anshan Forest Land of Daping Village, Daping Township, in the name of Wuling Agricultural and Wood Production and Development Co., Ltd., Wanshan District, Tongren City, and complete the acceptance of the restoration project within a time limit. After the judgment was pronounced, neither party appealed, and the judgment took legal effect.
Reasons for the Adjudication
The effective judgment of the court held that:
1. The Wanshan District Forestry Bureau failed to perform its duties in accordance with the law
Wanshan District Forestry Bureau, as the forestry administrative department of Wanshan District People's Government, is responsible for the supervision and management of the protection, utilization and renewal of forest resources within the administrative area of Wanshan District in accordance with Article 10 of the Forest Law of the People's Republic of China (revised in 2009). The Forestry Bureau of Wanshan District shall perform its duties in accordance with the law, and investigate and deal with the occupation and destruction of forest resources and the change of use of forest land in violation of forestry management laws and regulations. In accordance with the provisions of Article 44 of the People's Republic of China Forest Law (revised in 2009), the offender is ordered to stop the illegal act and replant trees in accordance with the law.
2. After the public security organs filed a case and investigated, the decision of the Wanshan District Forestry Bureau to revoke the administrative punishment was unlawful
In the case where the offender is subject to administrative punishment for the same act that violates both the administrative law and the criminal law, the administrative punishment already made by the administrative law enforcement organ before transferring the case to the judicial organ shall be offset against the penalty for the same function. According to Article 28 of the Administrative Punishment Law of the People's Republic of China (amended in 2017), "when the illegal conduct constitutes a crime and the people's court sentences criminal detention or fixed-term imprisonment, and the administrative organ has already given the person administrative detention, the corresponding sentence shall be deducted in accordance with law." Article 11, paragraph 3 of the "Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs" stipulates that "where the administrative law enforcement organs have already fined the parties in accordance with the law before transferring the suspected criminal cases to the public security organs, the people's court shall deduct the corresponding fines in accordance with the law when the people's court imposes a fine", this kind of discount is a discount for enforcement, not a discount for the punishment decision itself, and only for punishments with the same punishment function, the penalty content with different functions cannot be deducted. Therefore, administrative penalties that have already been imposed before the criminal investigation is filed should not be revoked. When the Wanshan District Forestry Bureau transferred the suspected criminal administrative violation to the public security organ, and after the public security organ filed the case, the Wanshan District Forestry Bureau revoked the administrative penalty decision it had already made, not only revoked the fine and punishment with the same fine and punishment function as the criminal judgment that might have imposed it, but also revoked the administrative punishment that did not belong to the criminal punishment function of ordering the offender to replant and replant the greenery to restore the original state. The revocation of the Wanshan District Forestry Bureau violated the law.
3. After the criminal judgment came into effect, the Wanshan District Forestry Bureau did not order the offender to restore the destroyed forest land
For punishment matters not covered by the criminal judgment, the administrative organ shall make an administrative punishment decision after the criminal judgment takes effect. Ordering the offender to replant and replant the environment to restore the environment does not fall within the scope of criminal punishment, but falls within the scope of administrative punishment granted by law to the competent administrative organ. After a criminal judgment takes effect, where no administrative punishment has been given before, after the criminal judgment takes effect, the administrative organ must not give an administrative punishment with the same function as the criminal punishment based on the same conduct. After the offender is investigated for criminal responsibility, if the criminal punishment does not involve the responsibility for environmental restoration, the administrative organ shall make a decision in accordance with law and order the offender to plant trees and restore the environment in accordance with the requirements of the Forest Law. Therefore, after the criminal judgment takes effect, the Wanshan District Forestry Bureau shall make an administrative penalty decision to order the offender to perform the obligation of replanting and regreening in accordance with the law and supervise the violator's performance. The defendant Wanshan District Forestry Bureau did not make a decision to order Shen Zhongxiang and Wuling Agriculture and Wood Company to replant and replant to restore the original state and supervise the performance.
Fourth, the Wanshan District Forestry Bureau did not perform its duty of replanting and reforestation
Where the ecological environment of the special functional zone is damaged, it shall, in principle, be restored in situ. Where the person obligated to restore or the person performing on behalf of the person claiming to make repairs in another place, but cannot prove that the in-situ restoration is impossible or necessary, the people's court will not support it. In the absence of a decision to order the offenders to restore the environment, the Wanshan District Forestry Bureau, together with the township people's government, planted some saplings on the destroyed forest land, but the effect was poor, the survival rate was not guaranteed, and the purpose of environmental restoration was not achieved. In addition, the land that has been seriously damaged and resembled the Gobi has not been regreened. In view of the nature of the destroyed forest land and the public welfare forest and the functions of water conservation and soil and water conservation, replanting and regreening should be carried out on the spot and should not be replaced in other places. Although the Wanshan District Forestry Bureau's act of replanting trees on behalf of the Company has partially performed its duties, it has not yet been performed correctly and comprehensively, and it should continue to be performed.
(Effective referees and adjudicators: He Lin, Li Xingrong, He Dehua)
Source: Supreme People's Court
