The provisions of the first paragraph of article 343rd of the criminal law, "mineral resources law, not a mining license, unauthorized entry into national planning mining area, has the important value to the national economy and other mining area mining, unauthorized exploitation of the State applies the specified minerals of which protective mining, shall be ordered to stop production by refusing to stop mining, causing damage to the mineral resources, is less than three years imprisonment, criminal detention or control, or be fined; caused severe damage to mineral resources, department for more than three years of less than seven years imprisonment, fined". The author thinks, this provision of misleading, the establishment of crime constitution conditions not conducive to punish crimes, shall be amended as: "mineral resources law, without a mining license, causes damage to the mineral resources; unauthorized entry into national planning mining, mining and other mining areas of mining has important value to the national economy, causing damage to the mineral resources; unauthorized exploitation of the State applies the specified minerals of which protective mining, causing damage to the mineral resources, is less than three years imprisonment, criminal detention or control, or be fined; caused severe damage to mineral resources, department for more than three years of less than seven years imprisonment, fined". The original intention of legislation clearly inappropriate, the constitution of crime provisions removed, make the law more reasonable, more perfect, more convenient implementation. Proposed this viewpoint for the following reasons:

A, original intention is not clearly stated, misunderstood

Article 343rd of the criminal law of the provisions of the first paragraph: "mineral resources law, not a mining license, unauthorized entry into national planning mining area, has the important value to the national economy and other mining area mining, unauthorized exploitation of the State applies the specified minerals of which protective mining, shall be ordered to stop production by refusing to stop mining, causing damage to the mineral resources, is less than three years imprisonment, criminal detention or control, or be fined; caused severe damage to mineral resources, department for more than three years of less than seven years imprisonment, fined". Interpretation of this provision, has the different understanding.

The first one is:

Not a mining license; unauthorized entry into national planning mining area, has the important value to the national economy and other mining area mining; unauthorized exploitation of the State applies the specified minerals of which protective mining, one of the three kinds of behavior, should also have "ordered to stop mining refuses to stop mining, the mineral the destruction of resources" conditions to form very mining crime.

The second interpretation is:

One is the mineral resources law, not a mining license, constitute the crime of illegal mining;

The two is allowed to enter the national planning mining area, has the important value to the national economy and other mining area mining, also constitute the crime of illegal mining;

Three is the unauthorized exploitation of the State applies the specified minerals of which protective mining, the ordered to stop mining refuses to stop mining, causing damage to the mineral resources also constitute the crime of illegal mining.

"Not a mining license" and "unauthorized entry into national planning mine, the national economy has important value according to the original plan. Others range mining", understood as whatever causes damage to the mineral resources or not constitute the crime of illegal mining. The "unauthorized exploitation of the State applies the specified minerals of which protective mining" a kind of behavior, understanding should be based on "being ordered to stop mining after refusing to stop mining, cause as the crime of illegal mining conditions of damage to the mineral resources".

In the first and second understanding ways, which one is correct, if not the authority of the Department of interpretation, it is difficult to judge right and wrong. It is because of the Supreme Court Judicial Committee have done "explanation", we can determine the first one is correct. This appeared in criminal law in terms of the easy to misunderstand the provisions, we must modify.

Two, the improper conditions, easy to indulge crime

Protection of mineral resources, is a necessary requirement to achieve the goal of building a well-off society, the implementation of the strategy of sustainable development. China is the largest developing country in the world, the relative shortage of resources is our basic national conditions, the rapid development of social economy and resource supply shortage of contradictions more prominent. The mineral resources from the point of view, China is the world's mineral resources production and consumption power, relative to China's population, rapid development, mineral products in great demand, and mineral products in short supply in the state, development and protection of mineral resources situation is grim. Although the total mineral resources are rich in China, but the amount per capita is only 58% of the world average level, and the species is not complete, some grade is very low. Waste and destruction of the phenomenon exists in the resource development process is more prominent, some local disorder of mineral resources, indiscriminate digging, increasingly serious geological disasters. The comprehensive construction well-off society's demand for resources will continue to show strong momentum, the contradiction between economic, social development and resource shortage will exist for a long time. We must keep a sober mind, constantly improve the legal protection of mineral resources (reference China democracy and the legal system of publishing house, the Supreme People's Court of criminal trial chamber I compiled "the current criminal law judicial interpretation and application" and its understanding).

Mineral resources are non renewable resources, mineral resources reserves, utilization and protection status reflects a country's level of economic development and future development potential. Because of this, our country implemented a strict management system of mineral resources, protection of mineral and other resources become the basic national policy of our country. However, in recent years, driven by economic interests, some local disorder to pluck the wind intensified, after rectification, but with little effect. Admittedly, in the "interpretation" of the Supreme Court explicitly illegal mining activities shall be investigated for criminal responsibility standard, for the use of the penalty means to curb the criminal damage to mineral resources, provides the legal basis of application specific, protection of natural resources play a very important role.

However, in judicial practice, we found that the legal provisions or the existence of one side is not perfect enough, often encountered in mineral resources illegal crime of destroying behavior cannot be prosecuted for the criminal responsibility in criminal law problems, because of the emergence of these problems, we feel very depressed in the work.

One reason is that by "shall be ordered to stop mining refuses to stop mining" the illegal mining crime restrictions, has caused serious damage to even cases of damage to the mineral resources, it can not be convicted shall be prosecuted for criminal responsibility. "By shall be ordered to stop production after refusing to stop mining" constitute the crime of illegal mining conditions, we feel very wrong, is not conducive to crime destruction of mineral resources, is not conducive to the protection of national effective non renewable resources. Therefore, from the criminal law provisions should be deleted as well. The reasons are as follows:

One is the actor is very aware of their behavior is illegal, criminal intention generation, ready to start mining, mining, all along is that illegal mining is prohibited by laws under the illegal exploitation of behavior. If the criminal law of our country the behavior person knowingly and assumed as the behavior of people do not know, but requires "shall be ordered to stop production after refusing to stop mining" as the necessary item is in essence the indulgence of crime, from the social and legal effects of the malpractice is obvious.

The two is illegal mining crime is committed, causing damage to the mineral resources consequences, it should be a crime. Non renewable mineral resources determines the mineral resources destruction can not be saved, the mineral resources as the basis of human survival, for the destruction of mineral resources will often lead to economic measure of the value of the irreversible damage, but also damage to restore almost impossible. Illegal mining not only destroy resources has also caused soil erosion, vegetation destruction and pollution of the environment. Therefore, the illegal mining act is very serious damage behavior. So, to combat illegal mining activities must be tough, as long as the mineral resources destruction occurs, it shall be convicted and punished. Can not add any unnecessary conditions to limit the power of criminal law society.

The three is based on "being ordered to stop mining after refusing to stop mining" the crime under the condition of cases, seem unfair, but in fact it is to protect the illegal mining act.

(1), unfair. Illegal mining crime by Supreme People's court in May 16, 2003, the 1270th meeting of the Judicial Committee on accreditation standards, the extent of damage of more than 50000 yuan for the accreditation standards. But because the request must have "conditions to the ordered to stop mining refuses to stop mining" constitute the crime of illegal mining, so similar cases have different results. For example, a and B are illegal mining act. But a license to exploit mineral, causing damage to mineral resources amounted to 50000 yuan, while in the supervision department shall order it to stop production after refuses to stop mining, mining to continue and causes damage to the mineral resources amounting to 50000 yuan. According to the criminal law and Supreme Court Interpretation, constitute a crime of illegal mining. While B is illegal mining, causing damage to mineral resources amounted to 2000000 yuan, shall be ordered to stop production after he stopped mining. According to the criminal law and Supreme Court Interpretation, not be held criminally responsible for B. Illegal mining act the same, a destruction of mineral resources is only 100000 yuan, while B compared with a damaging mineral resources up to 20 times. It is because in the first paragraph of article three hundred and forty-three of the criminal law "the ordered to stop mining refuses to stop mining" the essential requirements of a criminal responsibility, rather than destroy the plot more serious B, but could not be investigated for criminal responsibility, this is clearly unfair.

(2) loophole. In fact, "shall be ordered to stop mining refuses to stop mining regulations" to constitute a crime, the protection of a large number of serious illegal mining activities. Because of this provision, in the judicial practice of illegal mining have been found, regardless of how serious the behavior, the consequence, as long as it is the first time that can not be regarded as crime, the regulatory authorities found that only after a notice shall be ordered to stop production. Only when the act of receiving notice refuses to stop mining, can be identified as illegal mining crime, but in general, this possibility is very few, behavior person can stop mining, does not constitute a crime. Most illegal mining personnel is to take advantage of this gap, evading responsibility. Commonly used gimmick, shall be ordered to stop production notification is received immediately after the ore to sublet. Law enforcement officers to the new owner notice, the new owners will put mine subcontract to other people. National mineral resources Everfount damaged by criminal law, criminal responsibility shall be investigated for miners little. It should be said, the provisions of the first paragraph of article 343rd of the criminal law "shall be ordered to stop mining refuses to stop mining" conditions, is a loophole in the law, illegal personnel like beneficial way drill can make money and can escape legal sanctions. In the current serious corruption case, if the regulators and the illegal exploitation of behavior of malicious collusion, this crime will never happen, so, the original intention of legislation of criminal law will not be reflected.

In conclusion, the author thinks that the criminal law in the legal and social effects of the unity of purpose, the provisions of the first paragraph of article 343rd of the criminal law should be revised, canceled "shall be ordered to stop mining refuses to stop mining" provisions, amended as "without the approval of the unauthorized exploitation".

                                                                                   Jingxiche