In recent years, with the development of ecological restoration and governance work in mines in our country, there have been multiple cases suspected of illegal activities in mine ecological restoration and governance across various regions. Looking at these cases, the parties involved are mostly enterprises and responsible persons engaged in mine restoration and governance, making mine ecological restoration and governance a high-risk area for criminal activities.

 

 

1. Criminal risks that enterprises may encounter in mine ecological restoration and governance

 

(1) Criminal risks of illegal mining

 

From the cases that have emerged in various places, the most common offense committed by enterprises in mine restoration and governance is "illegal mining." In practice, illegal mining usually manifests in several forms, such as unlicensed mining, cross-border mining, and unauthorized mining of protected mineral species.

 

Those who constitute the crime of illegal mining and have serious circumstances may be sentenced to imprisonment for less than three years, criminal detention, or control, and may also be fined; those with particularly serious circumstances may be sentenced to imprisonment for more than three years but less than seven years, and fined. For corporate crimes, a "double penalty system" is implemented, meaning that the unit is fined, and the directly responsible supervisors and other directly responsible personnel are sentenced to criminal penalties.

 

In practice, some enterprises suspected of illegal mining are illegally mining under the guise of governance, while others inadvertently involve criminal activities due to unclear policies and non-standard operations.

 

(2) Other criminal risks

 

In addition to the crime of illegal mining, enterprises in mine ecological restoration and governance may also violate other environmental resource protection-related crimes, such as destructive mining, pollution of the environment, illegal logging, and illegal occupation of agricultural land. Furthermore, if there are behaviors such as benefit transfer and power-for-money transactions between enterprises and relevant regulatory department staff in mine governance projects, they may also be suspected of bribery.

 

2. Criminal risks that regulatory department staff may trigger in mine ecological restoration and governance

 

(1) Criminal risks of dereliction of duty

 

For relevant leaders and staff of regulatory departments, dereliction of duty crimes are the most easily triggered criminal risks in mine ecological restoration and governance projects, with typical charges being abuse of power and neglect of duty.

 

Those who constitute the crime of abuse of power or neglect of duty may be sentenced to imprisonment for less than three years or criminal detention; those with particularly serious circumstances may be sentenced to imprisonment for more than three years but less than seven years. If state agency staff engage in private misconduct, committing abuse of power or neglect of duty, they may be sentenced to imprisonment for less than five years or criminal detention; those with particularly serious circumstances may be sentenced to imprisonment for more than five years but less than ten years.

 

In addition, if state agency staff responsible for environmental supervision are severely irresponsible, leading to major environmental pollution accidents that cause significant losses to public and private property or serious personal injury, they may constitute the "crime of environmental supervision dereliction" and may be sentenced to imprisonment for less than three years or criminal detention.

 

(2) Criminal risks of bribery

 

In addition to dereliction of duty, if there are behaviors such as benefit transfer and power-for-money transactions between leaders of regulatory departments and enterprises, they may also be suspected of bribery. According to legal provisions, if state agency staff commit dereliction of duty and accept bribes, they will be punished for both dereliction of duty and bribery unless otherwise provided by criminal law.

 

3. Analysis and reflection on the reasons for the frequent occurrence of criminal risks in mine ecological restoration and governance

 

The occurrence of such cases, in addition to the responsibilities of the involved enterprises and relevant public officials, actually also reflects some objective reasons, highlighting some common issues in the current mine ecological restoration in our country. Whether it is relevant government departments, mine governance enterprises, or judicial organs, they all need to reflect on these issues.

 

(1) From the perspective of national policy, the development-oriented governance still lacks operable implementation details.

 

On July 1, 2016, the former Ministry of Land and Resources and five other ministries jointly issued the "Guiding Opinions on Strengthening the Restoration and Comprehensive Governance of Mine Geological Environment," pointing out that social capital participation is encouraged, and according to the principle of "whoever governs, benefits," the guiding role of financial funds should be fully utilized to vigorously explore the construction of a new model for mine geological environment restoration and comprehensive governance that is "government-led, policy-supported, socially involved, development-oriented governance, and market-oriented operation." However, this regulation is only a guiding opinion and lacks specific implementation details, providing no necessary safeguards for how to implement it and no clear provisions on how to coordinate the interests of enterprises and the state.

 

(2) From the perspective of local government execution, there is a lack of clear behavioral guidelines.

 

Regarding development-oriented governance, local governments are feeling their way forward, but it is unclear whether their practices comply with regulations or whether there are legal risks, and local governments are also relatively cautious when issuing relevant policies. Regarding whether enterprises can profit from participating in mine governance projects and how to profit, local governments often remain noncommittal. In some cases, due to local finances being unable to provide sufficient funding support for governance projects, enterprises, in order to ensure governance effectiveness and their own profitability, secretly sell stripped ore, thus triggering illegal mining risks.

 

(3) From the judicial perspective, judicial organs are prone to confuse mine restoration governance with ordinary illegal mining.

 

Many judicial organs lack a clear understanding of mine ecological restoration governance and are not very familiar with relevant laws, regulations, rules, and policies, often equating some non-standard behaviors in mine restoration governance with ordinary illegal mining, even confusing basic concepts. For example, they believe that not constructing according to the original design is illegal mining, without considering the reasons, purposes, and objective necessity of design changes, and do not consider whether the mining objects outside the design scope fall under the "mines" as defined by mining laws; they believe that the construction volume exceeding the design scope is illegal mining volume, without considering that the engineering volume and mining volume are completely different concepts.

 

 

4. How to prevent criminal legal risks in mine ecological restoration and governance

 

(1) Suggestions for preventing criminal risks for mine governance enterprises

 

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

 

1. Conduct thorough due diligence in advance, fully understand the basic situation of the mine to be restored, the scope of governance, the duration of governance, project approval status, funding sources, construction difficulties, etc., and develop contingency plans in advance for potential issues. Especially for important and potentially controversial matters, it is essential to keep written records.

 

2. Clarify the scope of governance. Before starting mine restoration governance, it is essential to obtain the final confirmed design plan and drawings, clarify the boundaries of the governance scope, and then proceed with construction. If design changes are needed, the change procedures should be promptly completed to ensure that construction complies with the design.

 

3. Clarify the handling methods for residual ore bodies and the comprehensive utilization of useful resources within the governance project, as well as the distribution methods of benefits, and reach an agreement with the construction unit in advance, fixing it in writing.

 

4. Pay attention to the drafting of contract terms and the formulation of relevant legal documents, as well as the collection, organization, and preservation of relevant evidence involved in the project. For contract terms, especially key terms, it is essential to draft them accurately and clearly define the rights and obligations of all parties; for the relevant evidence involved in the project, attention should be paid to collection and preservation for future needs.

 

5. Eliminate non-standard operations and prevent crossing legal red lines. Strictly follow policy regulations and contract agreements during construction, act according to procedural rules, avoid illegal operations, and do not have a mentality of taking chances, maximizing risk prevention.

 

6. Hire professional lawyers for full support. The ecological restoration and governance of mines involve many legal issues, and enterprises should timely consult professional lawyers for advice.

 

(2) Suggestions for preventing criminal risks for staff of relevant regulatory departments.

 

1. At the awareness level, regulatory personnel should be familiar with and understand the laws, regulations, rules, and policies related to mining rights supervision and mine restoration governance, enhance their awareness of compliance, uphold the bottom line of law enforcement, and maintain integrity and self-discipline.

 

2. At the institutional level, regulatory departments should clarify their supervisory responsibilities, improve regulatory processes, institutionalize and standardize various regulatory tasks, strengthen internal supervision and constraints, and ensure that regulatory responsibilities are implemented.

 

3. At the operational level, the specific division of responsibilities for regulatory personnel should be clarified, daily compliance inspections should be implemented, regulatory loopholes should be filled, law enforcement should be strengthened, and regulatory practices should not be merely formal.

 

5. Conclusion

 

Although mine ecological restoration and governance is a project beneficial to the country and the people, improper handling and ineffective supervision during the restoration process can also lead to various legal risks. Therefore, for enterprises and regulatory departments, how to effectively prevent their own criminal risks while doing a good job in mine restoration and governance is a very important issue. For judicial organs, how to accurately distinguish between criminal offenses, administrative violations, and civil breaches while combating crime, and reasonably determine the legal responsibilities of enterprises and relevant personnel is also a question worth deep consideration.