Judge the elements of dangerous work crime from the perspective of evidence review

2022-05-01 0 By

The crime of dangerous work is one of the misdemeanors added in the amendment (11) of criminal Law. How to apply the crime of dangerous work in judicial practice is a realistic problem that judicial personnel need to study deeply.The demarcation of “Three types of behavior” for the crime of dangerous work.As one of article 134 of the Criminal Law, the newly added crime of dangerous operation clearly stipulates three types of criminal acts, and does not set the bottom item.1. Grasp the provisions of article 134 (1) of the Criminal Law.The criminal acts stipulated in item (1) of Article 134 of the Criminal Law mainly focus on “equipment, facilities, data and information” and so on. Specifically, one is to close or destroy the monitoring, alarm, protection and life-saving equipment and facilities directly related to production safety.Second, tampering with, concealing and destroying relevant data and information in monitoring, alarm, protection and lifesaving equipment and facilities.In production practice, both the equipment and facilities directly related to production safety, as well as the data and information in the above equipment and facilities, play an extremely important role in ensuring production and operation safety.From the perspective of evidence review, the identification of “closing or destroying the monitoring, alarm, protection and life-saving equipment and facilities directly related to production safety” should focus on two aspects:First, review the evidence confirming the closure and destruction of the suspect, including but not limited to the specific situation of the closure and destruction of the equipment and facilities, as well as the monitoring videos of the equipment and facilities and witness testimonies.The second is to review the closed, damaged equipment and facilities, whether it belongs to “directly related to production safety” equipment and facilities, and whether it belongs to the “monitoring, alarm, protection, lifesaving” function of equipment and facilities.When necessary, the investigation organ may be required to obtain the relevant technical specifications for production safety in the field involved, or the relevant appraisal institution or industry experts may issue corresponding professional opinions.For the act of “tampering, concealing or destroying relevant data and information”, it shall focus on examining the evidence confirming the suspect’s tampering, concealing or destroying, including but not limited to the operation logs of equipment and facilities and the setting of alarm thresholds of equipment and facilities.2. Grasp the provisions of article 134 (2) of the Criminal Law.According to article 70 of the Work Safety Law, item (2) of Article 134 of the Criminal Law regulates the act of violating work safety by omission, which can be summarized as “refusing to implement the rectification order”.In terms of evidence examination, to the “order rectification and refused to carry out” behavior, the review should focus on the following contents: one is according to the stipulations of article 113 of the production safety law, related industries and areas “major accidents” decision criteria, by the supervision and administration of production safety department under the State Council and other departments responsible for the supervision and administration of production safety.Therefore, it is necessary to verify whether the “major accident hidden danger” involved in the case is determined according to the judgment standards formulated by the relevant administrative departments.The second is to review the specific content of the rectification decision made by the supervision and administration department of work safety, and verify whether it belongs to the situation of “stopping production and business operation, stopping construction, stopping the use of relevant equipment and facilities” listed in item (2).The third is to review whether the relevant rectification decision is based on the “existence of major accident hidden danger” and made, focusing on the review of work safety supervision and administration departments in the early stage of the administrative law enforcement process of the materials taken.The fourth is to review the evidence that confirms the suspect refuses to implement the rectification decision, including but not limited to the evidence that confirms that the suspect continues production and construction, continues to use relevant equipment and facilities and places, and does not immediately eliminate risks as required.3. Grasp of the provisions of article 134 (3) of the Criminal Law.In accordance with the provisions of the Law on Work Safety and other laws and regulations, those who engage in highly hazardous operations such as mining shall obtain permission or approval in accordance with the law.There is a real risk of serious accidents if such highly hazardous activities are carried out without permission or approval.Item (3) of Article 134 of the Criminal Law regulates the above behaviors, which can be summarized as “engaging in highly dangerous production activities without approval or permission”.From the perspective of evidence review, the determination of the above acts should focus on two aspects: one is to review whether the production activities involved are in the field that must be approved or licensed by relevant departments in advance according to relevant laws and regulations.It should be noted that “without approval or permission according to law” here does not only refer to “without approval or permission from the beginning”, any valid approval or permission was not obtained at the time of the incident belongs to “without approval or permission according to law”.It also includes invalidation of the original approval or permission, exceeding the scope and duration of the approval or permission, and obtaining approval or permission through illegal means.The second is to examine whether the production activities involved fall into the fields listed in item (3).It should be noted that the judgment of dangerous goods should adhere to the standard of substantive judgment.On the one hand, for virtually no dangerous goods, even if listed in the relevant dangerous goods catalogue, can not be identified as “dangerous goods” in the crime of dangerous work;On the other hand, although not listed in the relevant dangerous goods list, but in fact dangerous goods, can also be identified as dangerous goods in the crime of dangerous work.Similarly, for areas of production activities not listed above, emphasis should be placed on high-risk production activities, in addition to examining the need for prior approval or permission.The demarcation of “real danger” in the crime of dangerous operation.According to the regulation of one of article 134 of the criminal law, in decided whether or not constitute a crime of dangerous operations, not only to examine whether the actor implement the objective behavior, but also according to the specific case, judge whether a major casualties or other serious consequences “real risk”, “the real danger,” the condition is independent of the crime.As a concrete dangerous crime, the “real danger” here refers to the danger as a result, that is, the threat to legal interests caused by the behavior.If the behavior of the doer does not have such “realistic danger”, it can not be punished according to the crime of dangerous operation, but may constitute an administrative violation.”The judgment of concrete danger in concrete dangerous crime” is always a difficult problem in theory and practice.From the perspective of judicial application, it is necessary to prove the “real danger” in the crime of dangerous operation with relevant evidence, but since the harm result has not occurred, there are often practical difficulties in the determination.The author believes that it can be grasped from three aspects: one is the “danger judgment method”, the “real danger” in the crime of dangerous work mainly refers to the danger of “a close shave”, for example, there has been a major danger, or there has been a “minor accident”.If such a “major danger” or “minor accident” is identified, calculated or reexamined after the event, without intervention, “major casualty or other serious consequences” will inevitably occur, and then it can be identified as having “real danger”.The second is the “sufficient judgment method”, that is, whether the production and operation activities before the incident are enough to cause the realistic danger of major casualty accidents or other serious consequences. Specific judgment can be made from the relevant data and values.For example, in the process of coal mine production, according to the mine structure, coal seam structure and other conditions, the alarm set limit of gas concentration in different areas of the mine will be calibrated in advance. Once the set limit is reached or close to, it will be enough to cause gas explosion accidents.Therefore, the situation that is about to reach the relevant data set limit or critical value can be considered as having “realistic danger”.The third is the “cause backward method”, that is, from the cause of no major casualty accident or other serious consequences, reverse analysis.Although there was no major casualty or other serious consequences, it was found after the investigation that the reason was that the accident was stopped in time, or effective rescue was carried out in time, or it was narrowly avoided based on objective and accidental factors.The reasons mentioned above can be used as an important reference to judge whether there is “real danger”.(Author: The Second Branch of Tianjin People’s Procuratorate) Source: Procuratorial Daily