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No. 5 of Five Model Cases of Lawfully Punishing the Crime of Endangering Public Security Published by the Supreme People's Court: People v. Wu [REDACTED]bo—Violation of provisions on safety management in production and operation leading to a major accident or minor accident is a "real danger" in the crime of dangerous operation (case of dangerous operation)
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最高人民法院发布5个依法惩治危害公共安全犯罪典型案例之五：吴某波危险作业案——在生产、作业中违反安全管理规定导致出现重大事故险情或者发生轻微事故属于危险作业罪中的“现实危险”
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【法宝引证码】
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- Judgment date：
01-17-2023
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| No. 5 of Five Model Cases of Lawfully Punishing the Crime of Endangering Public Security Published by the Supreme People's Court: People v. Wu [REDACTED]bo (case of dangerous operation)—Violation of provisions on safety management in production and operation leading to a major accident or minor accident is a "real danger" in the crime of dangerous operation | | 最高人民法院发布5个依法惩治危害公共安全犯罪典型案例之五：吴某波危险作业案——在生产、作业中违反安全管理规定导致出现重大事故险情或者发生轻微事故属于危险作业罪中的“现实危险” |
| 1. Basic Facts | | （一）基本案情 |
| In January 2021, Defendant Wu [REDACTED]bo purchased the Zhedaiyu 15381 fishing vessel and registered the vessel title. Wu [REDACTED]bo was the owner of the vessel and held 100% of the shares. On August 2 of the same year, the Marine Administrative Law Enforcement Bureau of Daishan County, Zhejiang Province, together with the People's Government of Daidong Town, Daishan County, conducted a boarding inspection of the Zhedaiyu 15381 vessel before the start of fishing, only to find that on board the vessel there was one captain (Wu [REDACTED]bo), one first mate, one assistant mate, and one chief engineer (The first mate and chief engineer were not operating on the ship but were asked by Wu to cope with the inspection). The crew met the minimum staffing standards, but six crew members failed to receive professional training, obtain a crew certificate, or meet the sailing conditions, so they ordered that Wu [REDACTED]bo be prohibited from leaving the port and suspend business for rectification, but Wu [REDACTED]bo failed to make rectification. At about 15:00 on August 7, when only Wu [REDACTED]bo and the assistant mate without the first mate and chief engineer boarded the vessel, Wu [REDACTED]bo drove the Zhedaiyu 15381 vessel carrying the assistant mate and other 19 seamen (of whom 7 have crew certificates and the remaining 12 do not), and sailed without authorization from Nanfeng Wharf in Daishan County to the Yangtze River Estuary. At about 23:30 on the same day, due to illegal navigation, improper operation, complex waterways, and unfamiliar routes, the Zhedaiyu 15381 vessel capsized near the north dike of the deep-water channel of the Yangtze River Estuary. After the accident, the 21 persons including Wu [REDACTED]bo escaped in two life rafts. At 4:00 on August 8, they were rescued by the Donghai Rescue 102 vessel and the Jiazhou 9 vessel, and all on board were rescued. On August 13, after being notified by the public security oorgan by phone, Wu [REDACTED]bo appeared before the authority on his own and truthfully confessed the criminal facts. | | 2021年1月，被告人吴某波购得浙岱渔15381船并办理了渔业船舶所有权登记，吴某波为该船所有人并百分百占股。同年8月2日，浙江省岱山县海洋行政执法局会同岱山县岱东镇人民政府对浙岱渔15381船进行开捕前登船检查，发现该船有船长1名（吴某波）、船副1名、助理船副1名和轮机长1名（实际船副和轮机长并不在该船作业，系由吴某波找来应付检查），职务船员已达到最低配备标准，但有6名船员未经专业培训、未取得船员证书，不符合出航条件，遂指令吴某波禁止离港并停业整改，但吴某波未予整改。8月7日15时许，在船副和轮机长未实际登船作业、仅有吴某波和助理船副登船的情况下，吴某波驾驶浙岱渔15381船搭载助理船副和19名船员（其中7人有船员证书，12人无船员证书），擅自从岱山县南峰码头单船开航往长江口方向航行出海作业。当日23时30分许，因违规驾驶、操作不当及航道复杂、航线生疏等原因，浙岱渔15381船在长江口深水航道北导堤附近发生触损侧翻沉没。事故发生后，吴某波等21人乘坐两只救生筏逃生，至8月8日4时许先后被东海救102船和嘉舟9船救起，船上人员全部获救。8月13日，经公安机关电话通知，吴某波自行到案并如实供述了犯罪事实。 |
| 2. Judgment | | （二）裁判结果 |
| The People's Court of Daishan County, Zhejiang Province held that: There was only one captain and one assistant mate on the fishing vessel involved in the case, and officers and engineers were seriously understaffed, which falls under the circumstances for major accident hazards as prescribed by the relevant industry standards. After the relevant functional department discovered that the fishing vessel involved in the case had major accident hazards, and ordered it not to leave the port, cease operation, and take corrective action, but after receiving the administrative order from the functional department, Defendant Wu [REDACTED]bo refused to take corrective action, and knowing that the fishing vessel involved in the case had major accident hazards, deliberately resorted to fraud to avoid inspection. As a result, the fishing vessel involved in the case sank shortly after sailing without authorization, causing 21 persons to fall into the water and drift on the sea late at night. There is a real danger of life-threatening at any time. The act constituted the crime of dangerous operation. After being notified by the public security organ by phone, Wu [REDACTED]bo appeared before authority on his own and truthfully confessed his crime, which constituted a voluntary surrender according to the law, and a lighter punishment could be given. On November 10, 2022, Defendant Wu [REDACTED]bo was sentenced to fixed-term imprisonment of eight months for the crime of hazardous operation. After the court of first instance pronounced the judgment, Wu [REDACTED]bo filed an appeal. On January 17, 2023, the Intermediate People's Court of Zhoushan City, Zhejiang Province dismissed the appeal and affirmed the original judgment. | | 浙江省岱山县人民法院审理认为，涉案渔船上仅有船长和助理船副各1名，职务船员严重配备不足，属于有关行业标准规定的存在重大事故隐患的情形。相关职能部门发现案涉渔船存在重大事故隐患后，责令其禁止离港、停止作业并整改，被告人吴某波在接到职能部门行政命令后拒不整改，明知案涉渔船存在重大事故隐患，故意弄虚作假、逃避检查，导致案涉渔船在擅自出航后不久即发生船舶沉没事故，21名人员落水深夜在大海上漂流，具有随时可能危及生命的现实危险，行为已构成危险作业罪。吴某波经公安机关电话通知后自行到案并如实供述自己罪行，依法构成自首，可以从轻处罚。据此，于2022年11月10日作出判决，以危险作业罪判处被告人吴某波有期徒刑八个月。一审宣判后，吴某波提出上诉。浙江省舟山市中级人民法院于2023年1月17日作出裁定，驳回上诉，维持原判。 |
| ．．．．．． | | ．．．．．． |
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