In recent years, with the development of mine ecological restoration and management work in my country, there have been many cases of suspected violations of laws and regulations in mine ecological restoration and management. Looking at these cases, the subjects involved are mostly enterprises and persons in charge of mine restoration and management, and mine ecological restoration and management has become an area with high criminal risks.

 

 

Possible Criminal Risks of 1. Enterprises in Mine Ecological Restoration and Management

 

(I) criminal risk of illegal mining

 

Judging from such cases in various places, the most common crime committed by enterprises in mine restoration and management is "illegal mining crime". In practice, illegal mining usually manifests itself in several situations, such as unlicensed mining, cross-border mining, and unauthorized mining of protective minerals.

 

If the offence constitutes a crime of illegal mining and the circumstances are serious, the offender shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; if the circumstances are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. If a unit commits a crime, the "double penalty system" shall be implemented, that is, the unit shall be fined, and the person in charge and other persons directly responsible shall be sentenced to punishment.

 

From a practical point of view, some enterprises suspected of illegal mining are illegally mined in the name of governance, and some are inadvertently involved in punishment because of unclear policies and irregular operations.

 

(II) other criminal risks

 

In addition to the crime of illegal mining, enterprises may also commit other crimes that damage the protection of environmental resources in the ecological restoration and management of mines, such as the crime of destructive mining, the crime of polluting the environment, the crime of illegal logging, and the crime of illegal occupation of agricultural land. In addition, if the enterprise has the transfer of interests and the transaction of power and money between the staff of the relevant regulatory authorities in the mine governance project, it may also be suspected of bribery crimes.

 

Criminal risks that may be triggered by 2. regulatory staff in mine ecological restoration and management

 

(I) criminal risk of malfeasance

 

For the relevant leaders and staff of the regulatory authorities, the crime of dereliction of duty is the most easily triggered criminal risk in the mine ecological restoration project, and the typical charges are the crime of abuse of power and dereliction of duty.

 

If the offence constitutes a crime of abuse of power or dereliction of duty, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years. Any functionary of a State organ who engages in malpractices for personal gain and commits the crime of abuse of power or dereliction of duty shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years.

 

In addition, if it is a staff member of a state agency responsible for environmental protection supervision, due to serious irresponsibility, resulting in a major environmental pollution accident, causing heavy losses to public and private property or causing serious personal casualties, it may constitute a "crime of dereliction of duty in environmental supervision.", shall be sentenced to fixed-term imprisonment of not more than 3 years or criminal detention in accordance with the law.

 

(II) bribery criminal risk

 

In addition to the responsibility of dereliction of duty, such as the transfer of interests and the transaction of power and money between the leading cadres of regulatory departments and relevant units and enterprises, they may also be suspected of accepting bribes. According to the law, if a staff member of a state agency commits a crime of dereliction of duty and accepts bribes, and at the same time constitutes a crime of accepting bribes, unless otherwise provided in the criminal law, the crime of dereliction of duty and the crime of accepting bribes shall be punished together.

 

Analysis and Reflection on the Causes of Multiple Criminal Risks in Ecological Restoration and Management of 3. Mines

 

In addition to the responsibilities of the enterprises involved and relevant public officials, there are actually some objective reasons for the occurrence of such cases, which reflect some common problems of mine ecological restoration in my country. Whether it is the relevant government departments, or mining management enterprises, or judicial organs, need to reflect on these issues.

 

(I) at the national policy level, developmental governance lacks operational implementation rules.

 

On July 1, 2016, the former Ministry of Land and Resources and other five ministries and commissions jointly issued the "Guiding Opinions on Strengthening the Restoration and Comprehensive Management of Mine Geological Environment", and pointed out that social funds are encouraged to participate, in accordance with the principle of "who governs, who benefits", Give full play to the guiding and leading role of financial funds, vigorously explore the construction of a new model of mine geological environment restoration and comprehensive management of "government-led, policy support, social participation, development-oriented governance, and market-oriented operation. However, this regulation is only a guiding opinion, there is no specific implementation rules, there is no necessary safeguard measures on how to implement it, and there is no clear stipulation on how to coordinate the interests of enterprises and the interests of the state.

 

(II) from the local government implementation level, the lack of a clear code of conduct

 

For development-oriented governance, local governments are crossing the river by feeling the stones, but it is not clear whether the practices comply with the regulations and whether there are legal risks. Local governments are also more cautious when issuing relevant policies. Local governments are often noncommittal about practical issues such as whether and how enterprises can make profits in participating in mine management projects. In some cases, because local finances are unable to provide sufficient financial support for governance projects, companies secretly sell stripped ore in order to ensure governance effectiveness and their own profitability, thus raising the risk of illegal mining.

 

(III) at the judicial level, the judiciary is prone to confuse mine restoration and management with ordinary illegal mining.

 

Many judicial organs lack a clear understanding of mine ecological restoration and governance, and do not have a good understanding of relevant laws, regulations, rules and policies. They often equate some irregular behaviors in mine restoration and governance with ordinary illegal mining, and even confuse basic concepts. For example, it is considered that the construction not according to the original design is illegal mining, without considering the reason, purpose and objective necessity of changing the design, let alone whether the mining object constructed outside the design scope belongs to the "mine" stipulated in the mining law; It is believed that the construction amount beyond the design scope is illegal mining amount, regardless of the fact that the engineering amount and mining amount are completely different concepts.

 

 

4. How to Prevent Criminal Legal Risks in Mine Ecological Restoration and Governance

 

(I) Suggestions on the Prevention of Criminal Risk in Mine Management Enterprises

 

Once a criminal offence is suspected, the blow to the business is often huge, even fatal. Therefore, it is particularly important to do a good job of risk prevention. In the mine ecological restoration, it is recommended that enterprises do the following:

 

1. Do a good job in the early stage, fully understand the basic situation of the mine to be repaired, the scope of governance, the duration of governance, the project, the source of funds, the difficulty of construction, etc., and formulate a response plan in advance for possible problems. In particular, important and potentially controversial matters must be recorded in writing.

 

2. Clarify the scope of governance. Before starting the mine restoration and management, it is necessary to get the final design plan and design drawings, clarify the scope boundary of the management, and then enter the construction site. If the design needs to be changed, the change design procedures shall be improved in time to ensure that the construction conforms to the design.

 

3. Clarify the treatment method and income distribution method of residual ore bodies and comprehensive utilization of useful resources in the management project, and reach an agreement with the construction unit in advance and fix it in written form.

 

4. Pay attention to the formulation of contract terms and relevant legal documents, as well as the collection and storage of relevant evidence involved in the project. The terms of the contract, especially the key terms, must be drawn up accurately, and the rights and obligations of the parties must be clearly agreed; the relevant evidence involved in the project must be collected and preserved for emergencies.

 

5. Put an end to non-standard operation and prevent touching the legal red line. Strictly follow the policy and contract agreements to construct, act in accordance with the procedural rules, do not engage in illegal operations, there is no fluke mentality, and prevent risks to the greatest extent.

 

6. Hire professional lawyers to escort the whole process. There are many legal issues involved in the ecological restoration and management of mines, and enterprises should consult professional lawyers in a timely manner.

 

(II) Suggestions on Criminal Risk Prevention for Staff of Relevant Supervision Departments

 

1. At the level of consciousness, supervisors should be familiar with the relevant laws, regulations, rules and policies of mining rights supervision and mine restoration and governance, enhance the awareness of law-abiding, adhere to the bottom line of law enforcement, and adhere to integrity and self-discipline.

 

2. At the institutional level, the regulatory authorities must clarify their regulatory responsibilities, improve the regulatory process, institutionalize and standardize various regulatory work, strengthen internal supervision and control, and ensure that regulatory responsibilities are in place.

 

3. At the operational level, it is necessary to clarify the specific division of responsibilities of supervisors, implement daily compliance inspections, fill regulatory loopholes, strengthen law enforcement, and avoid mere formality of supervision.

 

5. epilogue

 

Although mine ecological restoration and management is a project that benefits the country and the people, if it is not handled properly and the supervision is not effective in the restoration and management, it will also induce many legal risks. Therefore, for enterprises and regulatory authorities, how to effectively prevent their own criminal risks while doing a good job in mine repair and management is a very important issue. For judicial organs, how to accurately distinguish criminal crimes, administrative violations and civil breach of contract while cracking down on crimes, and reasonably determine the legal responsibilities of enterprises and related personnel, is also a problem worthy of in-depth consideration.