Guiding Case No. 177: Hainan Lingao Yinghai Shipping Co., Ltd. v. Sansha Fishery Administration Detachment
（Case of Administrative Penalty）

[Keywords]

Administrative, administrative penalty, Convention on International Trade in Endangered Species of Wild Fauna and Flora(CITES), illegal transportation, rare and endangered aquatic wildlife and their products, coral and tridacnidae

[Key Points of Judgment] 

China as a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (hereinafter referred to as “the Convention”) shall protect all species of coral and tridacnidae listed in Appendix I and II of the Convention, whether living, dead specimens or relevant products in accordance with the law. Where an administrative organ imposes an administrative penalty in accordance with the Wildlife Protection Law and other relevant provisions against a person illegally transporting coral or tridacnidae listed in Appendix I and II of the Convention, the People's Court shall uphold such penalty.

[Legal Provisions]

Article 33 of the Law of the People's Republic of China on the Protection of Wildlife (revised on October 26, 2018) (Article 23 of the Law of the People's Republic of China on the Protection of Wildlife revised on August 27, 2009 shall apply to this case)

Articles 2, 20, 28, and 48 of the Regulations of the People's Republic of China on the Protection of Aquatic Wild Animals (revised on December 7, 2013)

[Basic Facts]

Tridacnidae is a kind rare bivalves, and a key protected aquatic wild animal in China and worldwide mainly living in tropical sea. All 9 species of tridacnidae are listed in appendix II of the Convention, among which the tridacna gigas (also known as Tridacna cookiana) is under first-class national protection. On August 21, 2014, during patrol operation in the sea areas of Sansha, the Third Detachment of Coast Guard of Hainan Provincial Public Security Border Defense Corps discovered that the "Yefeng 616" vessel owned by the plaintiff Hainan Lingao Yinghai Shipping Co., Ltd. (hereinafter referred to as Yinghai Company) had illegally loaded a large quantity of tridacnidae shells. The Detachement seized the vessel and transferred the case to the Sansha Law Enforcement Bureau for investigation and handling. Subsequently, as the case fell within the authority of the defendant Sansha Fishery Administration Detachment, and the Sansha Law Enforcement Bureau transferred the case to the defendant for enforcement. Upon verification, the plaintiff did not hold a Special Permit for Transportion of Aquatic Wild Animals, and the involved vessel was loaded with a total of 250 tons of tridacnidae shells. Upon assessment and evaluation by professional institutions, 98% of the shells were identified as tridacna gigas, a national first-class protected animal, and 2% as hippopus belonging to the tridacnidae family, which was listed in appendix II of the Convention. The total value of the involved tridacnidae shells was CNY 373,500. Accordingly, the defendant issued the Administrative Penalty Decision (No. 01 [2018] Fishery Administrative Penalty, Sansha, Hainan). As the transportation of tridacnidae shells by the "Yefeng 616" vessel without the "Special Permit for Transportation of Aquatic Wild Animals" violated Law of the People's Republic of China on the Protection of Wildlife and other relevant laws, the defendant imposed on the plaintiff an administrative penalty, including confiscating 250 tons of tridacnidae shells and a fine of RMB 1,120,500，which is three times the value of the items. The plaintiff did not accept the decision, and filed an administrative litigation in the Haikou Maritime Court, requesting a revocation of the administrative penalty decision.

[Judgment]

On November 30, 2018, the Haikou Maritime Court issued Administrative Judgment (2018) Qiong 72 Xing Chu No. 14 , rejecting the plaintiff’s claims and holding that the administrative penalty decision made by the Sansha Fishery Administration Detachment was based on clear facts and conclusive evidence, correctely applied laws and regulations as well as complied with statutory procedures. After the judgment was pronounced, Yinghai Company aappealed. The High People's Court of Hainan Province issued Administrative Judgment (2019) Qiong Xing Zhong 125 No.125 on April 10, 2019, dismissing the appeal and affirming the original judgment.

[Judgment's Reasoning]

The court holds that, 

I. As a signatory to the Convention, China shall strictly and fully fulfill the obligation under the Convention, protecting all species of coral and tridacnidae listed in appendix I and II of the Convention, whether living or dead specimens or relevant products in accordance with the law. Tridacnidae is a kind of protected rare and endangered aquatic wild animals, and its shells are products of protected aquatic wild animals according to the law of China. According to Paragraph 3 of Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases Occurring in Maritime Areas under China's Jurisdiction (II) and Article 2 of the Regulations of the People's Republic of China on the Protection of Aquatic Wild Animals, all aquatic wild animal species listed in the list of wild animals under national priority protection for first and second class national protection and/or listed in appendix I and II of the Convention, whether living or dead specimens or relevant products (any part of aquatic wild animals and their derivatives), shall be protected by law. The involved tridacna gigas is under first classs national protection according the list of wild animals under state priority conservation, and Hippopus is a species listed in appendix II of the Convention. Both of them are protected by law. The transported objects were tridacnidae shells, which were parts of tridacnidae as animal. As such, these shells shall be deemed as products of aquatic wild animals protected under Article 2 of the Regulations of the People's Republic of China on the Protection of Aquatic Wild Animals. Yinghai Company's defense that the tridacnidae shells involved were dead bodies and it did not violate laws or administrative regulations cannot be established.

II. The acts involved in the illegal "industrial chain" of exploiting and utilizing wild animal resources, including illegal capturing, acquisition, transportation, processing, and selling of rare and endangered wild animals and their products, constitute a violation against law and shall bear corresponding legal liabilities. The act of illegally transporting rare and endangered wild animals and their products is an important link in the illegal "industrial chain" of exploiting wild animal resources and shall bear corresponding legal consequences and liabilities. According to Article 23 of the Law of the People's Republic of China on the Protection of Wildlife (revised on August 27, 2009) , Article 20 of the Regulations of the People's Republic of China on the Protection of Aquatic Wild Animals, and Article 29 of Measures of the People's Republic of China for Special Permit for Exploitation of Aquatic Wild Animals in force at the time of the case, the act of transporting or carrying key national protected wild animals or their products out of any county must be approved by the wildlife administrative department of the people's government of a province, autonomous region, or municipality directly under the Central Government or its authorized entities, with corresponding permit. In this case, Yinghai Company transported the involved tridacnidae shells from Sansha to Hainan Island without approval or any relevant permit, which has constituted a violation against law. Therefore, the imposition of a fine by the Sansha Fishery Administration Detachment was in compliance with laws and administrative regulations.