非法猎捕、杀害珍贵、濒危野生动物罪若干问题初探

Discussion on Several Issues about the Crime of Illegally Catching or Killing Precious and Endangered Species of Wildlife under Special State Protection

我国刑法规定的非法猎捕、杀害珍贵、濒危野生动物罪之保护法益,是野生动物资源的多样性和生态平衡。一般而言,非法猎捕珍贵、濒危野生动物但未杀害的行为与非法猎捕后杀害的行为在法益侵害程度上有别;非法猎捕、杀害一级保护野生动物与非法猎捕、杀害二级保护野生动物,在法益侵害程度上亦有别;对于所捕杀的野生动物是否属于国家保护的珍贵动物,若被告人提出无违法性认识可能性之抗辩,应予司法评判。此乃责任主义原则的必然要求。

The crime of illegally catching or killing precious and endangered species of wildlife under special state protection stipulated by national Criminal Law is to protect the diversity of wildlife and the ecobalance. Generally, illegally catching but not killing the precious and endangered species of wildlife under special state protection is different from catching and killing them in the violated degree of their legal interest; Illegally catching or killing precious and endangered species of wildlife of the first class also differs from illegally catching or killing that of the second class in the violated degree of their legal interest; if the defendant puts forward a defense of lack of the possibility of illegal consciousness, for instance, he does not know the captured was wildlife under special state protection, it should be under judicial determination. All these are the natural requirements of culpability principle.