Criminal and Collateral Civil Public Interest Litigation against Qin * Xue for Illegal Logging

Case Brief

The Baojing County People’s Procuratorate in Hunan Province (Procuratorate) charged the defendant Qin * Xue with the crime of illegal logging and brought this case before the Baojing County People’s Court (court). During the trial, a collateral civil public interest action was also brought on the grounds that public interests had been harmed.

The Procuratorate submitted that the defendant should bear criminal liability for the offense of illegal logging; and that since the defendant’s actions had severely damaged the ecological environment and harmed the public interest, relevant provisions of the Tort Liability Law provide that the defendant should undertake reforestation and make a public apology. While conceding liability, the defendant pleaded in mitigation of sentence that as owner and operator of the land, he had already paid the reforestation bond.

At the hearing, the court found that the Mount Baiyun county-level Nature Reserve had been established in 1998. It was centered around the Mount Baiyun County state-owned forest farm, which had been established in 1958. The Reserve was accorded provincial status in 2005 when the public interest forest area was delineated; then in 2013 it was named a National Nature Reserve. In 1998, the defendant won a contract for the Tudi’ao section of forest in the heart of the Reserve, in Wodang Village, Maogou Township, Baojing County. In 1999, the defendant began planting fir trees on land within the public interest forest area. From September 2016 to January 2017, the defendant illegally felled and sold fir trees on this parcel of land, without a logging permit and in violation of the Forestry Law. Some 117.5 mu (1 mu is approximately 666.7 m2) of the felled area were within the core section of this protected land, while 15.46 mu were outside. In total, the defendant felled 1,010 trees amounting to more than 153 cubic meters (m3) of vegetation. The Baojing County Forest Planning and Surveying Team certified that replanting saplings to replace the felled trees would cost CNY 66,025.

During the hearing, the Baojing County Forest Planning and Surveying Team, together with the county forestry bureau and the Reserve, proposed specific recommendations and expert requirements for replanting the damaged area. To guarantee the fulfillment of his obligation, the defendant paid a bond of CNY 66,025.

Judgment

On 3 August 2018, the Baojing County People’s Court in Hunan issued the [2018, Hunan, 3125, Criminal First Trial, No. 5] Joint Civil and Criminal Judgment.

It found the defendant guilty of illegal logging, sentencing him to 3 years’ imprisonment and 4 years’ probation, plus a fine of CNY 10,000. The court also ordered the defendant to replant 5,050 one-year-old fir saplings in the Tudi’ao area of the Reserve within 2 years, and directed that the saplings should have a minimum survival rate of 90%. The defendant did not appeal, and the first-instance judgment was executed. Complying with his sentence, the defendant planted 5,050 one-year-old fir saplings on the land where logging had occurred, with a 100% survival rate.

Reasoning

The court found the defendant guilty of illegal logging for the unlicensed mass-felling of trees on public interest land within the core section of the Reserve. This logging violated the Forestry Law and occurred without the consent of forestry authorities. The defendant’s contrition as a first-time offender admitting the charges, and his replanting bond of CNY 66,025 paid into court, were taken into consideration as mitigating factors enabling the court to pass a more lenient sentence.

The Reserve is located within one of China’s 17 key biodiversity areas, namely the Wuling Mountains and the You River Delta. It serves as an important channel for the flow of flora and fauna between the Yunnan-Guizhou Plateau, the Sichuan Basin, the Xuefeng Ranges, and the Xiangzhong Basin. Moreover, the Reserve is also a key water resources conservation area of the Yuan River, a tributary of the Dongting Lake in the Yangtze River basin. Its forests serve many crucial functions, including soil and water conservation, and the maintenance of biodiversity.

The trees purchased, planted, and managed by the defendant had already become an inseparable and organic component of the Mount Baiyun Nature Reserve’s forestry resources. The defendant’s unlicensed felling of the trees constituted a tortious act, as it severely disrupted the Reserve’s ecosystem, endangered biodiversity, and seriously harmed the public interest. However, collateral civil public interest litigation is not a conventional civil action; nor is the Procuratorate as plaintiff a victim in the traditional sense of the word.

The court granted the plaintiff’s request that the defendant bear legal liability for replanting the affected area and restoring it to its pre-logging condition, as the request was deemed rational and well-founded in law and evidence. In particular, the Tudi’ao replanting plan prepared by the Baojing County Forest Planning and Surveying Team, with expert material and opinions provided by the county forestry bureau and the Mount Baiyun Nature Reserve, and Article 39(2) of the Forestry Law, all supported the plaintiff’s request that the defendant bear responsibility for replanting.

Counsel for the defendant submitted that his right to operate the contracted land should also be accorded lawful protection; this was also held to be reasonable and taken into account in determining the defendant’s liability.