[Key words] criminal / dereliction of duty / innocent defense / withdrawal of prosecution
[introduction of the lawyer in this case]
Geng LuHong, senior partner of Liaoning Tongfang law firm, head of criminal business department, legal adviser of Liaoning provincial government, and director of criminal Professional Committee of Liaoning Provincial Lawyers Association.
The main business areas are criminal defense, major and complex civil and commercial dispute resolution, administrative litigation and other legal work. He has rich case handling experience and was awarded the excellent lawyer of Liaoning Province in 2012-2013.
Jiang Weimin is a practicing lawyer of Liaoning Tongfang law firm.
Ma Yunhe is a practicing lawyer of Dalian Branch of Liaoning Tongfang law firm.
[referee points]
The subject of the crime of dereliction of duty is a special subject, which is the staff of state organs. If the actor does not have the authority to exercise state administration according to law or entrusted, it does not meet the main requirements of the crime of dereliction of duty and does not constitute the crime of dereliction of duty.
[basic case]
The Houshan reservoir project in Suizhong County is a national key engineering construction project. It was approved by the national development and Reform Commission for construction. It was won the bid and undertaken by Sinohydro Bureau 6 Co., Ltd. through public bidding. It was settled in September 2013 for construction. At about 17:30 on October 9, 2015, the hanging basket of three workers who were carrying out the appearance treatment work at the dam section 4 upstream of the main dam of Houshan reservoir suddenly fell from a high altitude. Two of the three operators were killed and one was seriously injured, and the direct economic loss was 2.0538 million yuan. Suizhong County People's Procuratorate accused: the defendants Miao, Bai and Chen, as the safety production supervision and inspection personnel of Suizhong County Houshan Reservoir Construction Management Bureau, failed to seriously perform the supervision and inspection duties in strict accordance with the provisions and requirements of relevant laws and regulations, resulting in production safety accidents of Houshan reservoir construction project, resulting in two deaths and one serious injury, and direct economic losses of 2.0538 million yuan. His behavior has violated Article 397 of the criminal law of the people's Republic of China and is suspected of dereliction of duty.
[judgment result]
First instance: first, the defendant Miao Mou committed the crime of dereliction of duty and was exempted from criminal punishment; 2、 The defendant Bai committed the crime of dereliction of duty and was exempted from criminal punishment; 3、 The defendant Chen committed the crime of dereliction of duty and was exempted from criminal punishment;
Second instance: cancel the original judgment and remand it for retrial.
First instance after remanding for retrial: Suizhong County People's Procuratorate is allowed to withdraw the lawsuit.
[reasons for adjudication]
Suizhong County People's Procuratorate on January 9, 2019 made the decision of no prosecution (sjxnbs [2019] No. 2, 3 and 4) which stated that after the review and return to the court for supplementary investigation, the court still believes that the criminal facts identified by the anti corruption Department of the original Suizhong County People's Procuratorate are unclear and insufficient evidence. The reasons are as follows: (1) whether the three persons, such as Miao, who are not to be prosecuted, meet the subject of the crime of dereliction of duty, and whether the Houshan Reservoir Construction Management Bureau is responsible for the supervision and management of production safety are unclear and the evidence is insufficient. (2) Whether the work safety supervision and management responsibilities of the three persons, including Miao, who is not to be prosecuted, are based on the responsibilities of the construction unit or on the authorization of the law or the state organs, the facts are unclear and the evidence is insufficient. (3) Whether there is a causal relationship between the acts of the three persons, including Miao, who is not to be prosecuted, and the occurrence of the accident, the facts are unclear, the evidence is insufficient, and the conditions for prosecution are not met. In accordance with the provisions of paragraph 4 of Article 175 of the criminal procedure law of the people's Republic of China, upon the approval of Huludao Municipal People's Procuratorate, it is decided not to prosecute Miao, Bai and Chen.
[lawyer's opinion]
In this case, the defendant and the Houshan Reservoir Construction Management Bureau are not responsible for the occurrence of the accident of the Houshan reservoir project, but the defendant is accused by the procuratorate of being suspected of dereliction of duty. Our defense opinions are mainly elaborated from two aspects: the defendant and the Houshan reservoir construction authority are not responsible for the accident, and the defendant does not meet the main requirements of the crime of dereliction of duty, and does not have the authority to exercise state administration according to law or entrusted:
1、 The defendant and the Houshan reservoir construction authority are not responsible for the accident.
The accident investigation and handling report in the file does not mention the defendant and the Houshan reservoir construction authority where the defendant is located in the accident cause, responsibility identification and handling opinions.
The accident investigation and treatment report issued by the accident investigation team identified two direct causes of the accident: first, the workers operated against the rules. According to the regulations, two people should work in the hanging basket at the same time and one person should be on the ground for supervision. In fact, all three people entered the accident hanging basket, causing the hanging basket to fall from high altitude; Second, the steel wire rope on one side of the basket in the accident was pulled out of the steel wire rope buckle, causing the steel wire rope on the other side to be broken under separate stress, resulting in the accident. There are two indirect reasons for the accident: first, the project safety supervision of Sinohydro Bureau 6 Co., Ltd. is not in place, and the illegal operation of workers is not found in time; Second, the management of the operation site was chaotic, and the accident potential could not be found and eliminated in time. In the direct and indirect reasons, it was not found that it was related to the defendant and the Houshan reservoir construction authority where the defendant was located.
In the responsibility identification and handling opinions of the accident investigation and handling report, the project Department of Sinohydro Bureau 6 Co., Ltd. and the five persons responsible for the accident were fined according to the regulations on production safety accident report, investigation and handling of the State Council, and the defendant and the Houshan reservoir construction administration were not identified as responsible for the accident.
2、 The defendant Miao does not meet the main requirements of the crime of dereliction of duty, nor does he have the authority to exercise state administration according to law or entrusted, and does not constitute the crime of dereliction of duty.
The crime of dereliction of duty refers to the behavior of the staff of state organs who are seriously irresponsible, do not perform or do not seriously perform their duties, resulting in heavy losses to public property, the interests of the state and the people.
The subject of the crime of dereliction of duty is a special subject, which is the staff of state organs.
Article 7 of the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of laws in handling criminal cases of dereliction of duty (I) stipulates that: if the staff of a company, enterprise or institution exercising the administrative functions and powers of the state according to law or entrusted by the Supreme People's court and the Supreme People's Procuratorate abuses their powers or neglects their duties when exercising their administrative functions and powers, which constitutes a crime, Criminal responsibility shall be investigated in accordance with the provisions of the interpretation of the Standing Committee of the National People's Congress on the application of the subject of the crime of dereliction of duty in Chapter IX of the criminal law of the people's Republic of China.
The interpretation of the Standing Committee of the National People's Congress on the application of the subject of the crime of dereliction of duty in Chapter IX of the criminal law of the people's Republic of China is as follows: "If a person who is engaged in public service in an organization that exercises the administrative functions and powers of the state in accordance with the provisions of laws and regulations, or a person who is engaged in public service in an organization entrusted by a state organ to exercise the functions and powers on behalf of a state organ, or a person who is not included in the staffing of a state organ but is engaged in public service in a state organ, when exercising the functions and powers on behalf of a state organ, commits dereliction of duty, which constitutes a crime, he shall be investigated in accordance with the provisions of the criminal law on dereliction of duty Criminal liability. "
Positioning the Houshan Reservoir Construction Management Bureau is the top priority of this case. Is it the management unit with the authority of safety production supervision and inspection, or the managed employer (construction unit)? It is a basic common sense that the manager and the managed are opposites and cannot be unified. A unit cannot be both the manager and the managed.
In fact or in law, Houshan reservoir construction administration is not a management unit with the authority of safety production supervision and inspection, but a managed employer (construction unit):
Fact level:
On August 17, 2015, Suizhong Houshan reservoir construction management office, the predecessor of Suizhong Houshan Reservoir Construction Management Bureau, issued the letter of acceptance to Sinohydro Bureau 6 Co., Ltd. as the employer. On August 19, 2015, the Construction Management Office of Houshan reservoir (the predecessor of the Management Bureau) signed the construction contract of Houshan reservoir project as the employer. The official reply on the establishment of Houshan Reservoir Construction Management Bureau also clearly records that Houshan Reservoir Construction Management Bureau is a public institution affiliated to Suizhong County Water Conservancy Bureau. The above documentary evidence can prove that the status of the authority is the employer (construction unit).
Legal level:
Article 9 of the work safety law stipulates that "the work safety supervision and administration departments of the local people's governments at or above the county level shall, in accordance with this law, exercise comprehensive supervision and administration over the work safety within their respective administrative areas." "The relevant departments of the local people's governments at or above the county level shall, in accordance with the provisions of this Law and other relevant laws and regulations, supervise and administer the work of production safety in the relevant industries and fields within the scope of their respective responsibilities." the departments of production safety supervision and Administration and the departments of production safety supervision and administration in the relevant industries and fields are collectively referred to as the departments responsible for production safety supervision and administration. " Obviously, according to the above legal provisions, the Houshan Reservoir Construction Management Bureau is not a safe production supervision and Management Department of the county government, nor is it a relevant department of the county government, so of course it is not a department responsible for safe production supervision and management. This is the determination of a major premise.
Article 62 of the production safety law stipulates that "the production safety supervision and administration department and other departments responsible for the supervision and administration of production safety shall carry out the administrative law enforcement work of production safety according to law, and shall not belong to the production and operation units (the departments responsible for the supervision and administration of production safety and the production and operation units are opposite and different subjects, and the departments responsible for the supervision and administration of production safety shall not belong to the production and operation units.) To supervise and inspect the implementation of laws, regulations and national or industrial standards related to production safety, and exercise the following functions and powers: (2) to rectify on the spot or require rectification within a time limit the illegal acts of production safety found in the inspection; To make decisions on administrative punishment in accordance with the provisions of this Law and other relevant laws and administrative regulations for acts that should be subject to administrative punishment according to law; （3） The hidden dangers of accidents found in the inspection shall be ordered to be eliminated immediately; If the safety cannot be ensured before or during the elimination of major accident hazards, it shall be ordered to evacuate the personnel from the operation in the dangerous area, and shall be ordered to suspend production and business temporarily. "
Article 8 of the administrative punishment law stipulates that the types of administrative punishment include: (1) warning; （2） Fines; （3） Confiscate illegal income and property; （4） Order to suspend production or business; （5） Temporarily withholding or revoking the license, or temporarily withholding or revoking the license; （6） Administrative detention; （7） Other administrative punishments stipulated by laws and administrative regulations.
According to the above legal provisions, if the Houshan reservoir construction administration is a department responsible for the supervision and management of production safety, it should have the power of administrative punishment. In fact, the administration does not have the power of administrative punishment. Therefore, the Houshan reservoir construction administration is not a department responsible for the supervision and management of production safety as stipulated in the production safety law.
Article 87 of the production safety law stipulates that if any staff member of the Department responsible for the supervision and administration of production safety commits dereliction of duty and constitutes a crime, he shall be investigated for criminal responsibility in accordance with the relevant provisions of the criminal law. Since the Houshan Reservoir Construction Management Bureau is not a department responsible for the supervision and management of production safety as stipulated in the production safety law, the defendant Miao, who is temporarily seconded to the Bureau, certainly does not belong to the staff of the Department responsible for the supervision and management of production safety, and certainly does not meet the main requirements of the crime of dereliction of duty.
Let's take a look at the provisions on the administration of safe production in water conservancy project construction. The relevant provisions of the Department's regulations of the Ministry of water resources: there are some excerpts from the Department's regulations on pages 74-76 of Volume II of the dossier, which can not fully and truly reflect the provisions and requirements of the Department's regulations on units related to safe production in water conservancy project construction. There should be no objection to the status of Houshan reservoir construction administration as a project legal person (construction unit). Articles 6 to 11 of the Department's regulations are the safety responsibilities of the project legal person, and none of the project legal person has the responsibilities of safety production supervision and management.
Articles 16 to 25 of the Department's regulations are the safety responsibilities of the construction unit, and Article 22 stipulates that "special operation personnel must undergo special safety operation training in accordance with relevant national regulations and obtain special operation qualification certificates before they can work". It is obvious that "special operation personnel work with certificates" belongs to the safety responsibility of the construction unit.
Articles 26 to 33 of the Department's regulations stipulate the contents of supervision and management. Article 26 stipulates that "the water administrative department and the river basin management organization shall be responsible for the supervision and management of the safe production of water conservancy project construction according to the hierarchical management authority. The safe production supervision organization entrusted by the water administrative department or the river basin management organization shall be responsible for the specific supervision and inspection of the water conservancy project construction site." Article 29 stipulates that "the supervisory and administrative responsibilities of the water conservancy administrative departments of the people's governments at the city and county levels for the safe production of water conservancy projects shall be formulated by the water conservancy administrative departments of the people's governments of provinces, autonomous regions and municipalities directly under the central government." Article 30 provides that: "The production safety supervision institution entrusted by the water administrative department or the river basin management institution shall supervise and inspect the construction site of the water conservancy project in strict accordance with the laws, regulations, rules and technical standards related to production safety. The production safety supervision institution shall be equipped with a certain number of full-time production safety supervisors. The production safety supervision institution and the production safety supervisors shall pass the examination of the Ministry of water resources."
According to the above provisions, it is very clear whether the Houshan reservoir construction administration belongs to the production safety supervision organization and whether the defendant belongs to the production safety supervision personnel. The answer must be No. First of all, the Houshan reservoir construction authority is either the project legal person (construction unit) or the production safety supervision organization. The two cannot coexist and can only have one identity. There are sufficient facts to prove that the Houshan reservoir construction authority belongs to the project legal person (construction unit). Therefore, the Houshan reservoir construction authority does not belong to the production safety supervision organization, and the defendant Miao is certainly not a production safety supervisor. Secondly, the safety production supervision organization and the safety production supervision personnel shall pass the assessment of the Ministry of water resources. There is no evidence to prove that the Houshan Reservoir Construction Management Bureau and the defendant Miao are the units and personnel passing the assessment of the Ministry of water resources.
Article 40 of the Department's regulations stipulates that if administrative punishment is required for violation of these regulations, the water administrative department or the river basin management institution shall implement the regulations on the administration of safe production of construction projects. The Houshan Reservoir Construction Management Bureau does not have the power of administrative punishment, so it certainly does not belong to the production safety supervision organization, and the defendant certainly does not belong to the production safety supervision personnel.
As for the guidelines for supervision and inspection of safe production in water conservancy project construction, the effectiveness is a normative document of the Department. Article 1.2 of the guidelines has clearly stipulated that "the guidelines are used to guide water administrative departments at all levels and river basin institutions or their entrusted safety production supervision institutions to carry out supervision and inspection of safety production supervision of water conservancy construction projects". Therefore, the guidelines bind water administrative departments at all levels and other safety production supervision institutions, rather than project legal persons such as Suizhong Houshan Reservoir Construction Management Bureau. In addition, it has been discussed before that Houshan reservoir construction administration is not a work safety supervision organization, so the contents of this guideline are not applicable to determining that the defendant has the identity and responsibilities of work safety supervision personnel.
The public prosecution authority believes that the Houshan reservoir construction authority is a public institution entrusted to exercise administrative functions and powers. The defendant Miao is also responsible for the supervision and inspection of production safety in the Houshan reservoir construction authority. Therefore, if an accident occurs and economic losses are caused, the criminal responsibility of the defendant should be investigated. This logic is wrong. The public prosecution authorities did not provide sufficient evidence to prove that the Houshan reservoir construction and Management Bureau is a public institution entrusted by law to exercise the state's administrative functions and powers.
Article 17 of the administrative punishment law stipulates that organizations authorized by laws and regulations to manage public affairs may implement administrative punishment within the scope of legal authorization. Article 18 stipulates that an administrative organ may, in accordance with the provisions of laws, regulations or rules, appoint