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Guiding Case No. 97 of the Supreme People's Procuratorate: People v. Xia A et al. (case of a major liability accident)
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检例第97号：夏某某等人重大责任事故案
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【法宝引证码】
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| Guiding Case No. 97 of the Supreme People's Procuratorate: People v. Xia A et al. (case of a major liability accident) | | 检例第97号：夏某某等人重大责任事故案 |
| Guiding Case No. 97 of the Supreme People's Procuratorate | | 检例第97号 |
| [Keywords] | | 【关键词】 |
| crime of major liability accident, traffic accident crime, guiding investigation after arrest, trial supervision | | 重大责任事故罪 交通肇事罪 捕后引导侦查 审判监督 |
| [Key Points] | | 【要旨】 |
| In the case of a vessel traffic accident in inland water transportation, a liable person may be suspected of both the traffic accident crime and the crime of major liability accident, and the charge shall be accurately applied according to whether the transportation activity is for hire in nature and the specific duties and acts of the relevant person. As a major liability accident often involves relatively many persons and complicated causation, the criminal liability of the investors and officers of the case-related entity, relevant state employees, and other case-related persons shall be accurately determined. | | 内河运输中发生的船舶交通事故，相关责任人员可能同时涉嫌交通肇事罪和重大责任事故罪，要根据运输活动是否具有营运性质以及相关人员的具体职责和行为，准确适用罪名。重大责任事故往往涉案人员较多，因果关系复杂，要准确认定涉案单位投资人、管理人员及相关国家工作人员等涉案人员的刑事责任。 |
| [Basic Facts] | | 【基本案情】 |
| Defendant: Xia A (with partial name withheld), male, former shareholder, operator, and driver of the barge X. | | 被告人夏某某。 |
| Defendant: Liu A (with partial name withheld), male, former driver of the barge X and a barge associate shareholder. | | 被告人刘某某。 |
| Defendant: Zuo A (with partial name withheld), male, former barge associate shareholder and operator. | | 被告人左某某。 |
| Defendant: Duan A (with partial name withheld), male, former associate shareholder and operator of the barge X. | | 被告人段某某。 |
| Defendant: Xia Ying A (with partial name withheld), male, former shareholder and operator of the barge X. | | 被告人夏英某。 |
| In March 2012, as promoted by Zuo A, more than ten shareholders of four barges including X including Xia A, Liu A, Duan A, and Wu A signed an associate agreement after negotiation. Zuo A was responsible for routine operation, management and finance, and responsible for vessel dispatching together with Duan A; and Xia A, Xia Ying A, and Liu A were responsible for the specific operation of the barge X. Without a vessel's certificate of fitness, a vessel registration, a permit for water transportation, a for-hire vessel certificate, and other operating qualifications, the above four barges were used for the business of transportation of freight vehicles in some waters of Zi River in Anhua County of Hunan Province. | | 2012年3月，在左某某的召集下，“X号”等四艘平板拖船的股东夏某某、刘某某、段某某、伍某某等十余人经协商签订了联营协议，左某某负责日常经营管理及财务，并与段某某共同负责船只调度；夏某某、夏英某、刘某某负责“X号”平板拖船的具体经营。在未依法取得船舶检验合格证书、船舶登记证书、水路运输许可证、船舶营业运输证等经营资质的情况下，上述四艘平板拖船即在湖南省安化县资江河段部分水域进行货运车辆的运输业务。 |
| At about 12 o'clock on the evening of December 8, 2012, in accordance with the dispatch arrangement by Duan A, the X operated by Xia A and Liu A carried four freight vehicles from Shibadu Wharf in Yanxi Town of Anhua County to Pingkou Town of Anhua County along the waterway in Zhexi Reservoir in the waters of Zi River. As there was no vehicle securing device aboard the X, Xia A and Liu A only put wooden square sticks and wooden triangles behind the left rear wheels of the vehicles to prevent them from rolling around, and failed to request drivers and passengers to leave the cab as required for the "segregation of persons and vehicles." At 3 o'clock on the morning of the next day, when the X arrived at the river section in Anping Village of Pingkou Town, the vessel tilted as a result of the improper operations by Liu A, leaving the four freight vehicles it carried slipping into the Zhexi Reservoir and sinking into the water. In the accident, ten drivers and passengers fell into the water with the vehicles, nine of whom were drowned, causing a direct economic loss of 1 million yuan. | | 2012年12月8日晚12时许，按照段某某的调度安排，夏某某、刘某某驾驶的“X号”在安化县烟溪镇十八渡码头搭载四台货运车，经资江水域柘溪水库航道前往安化县平口镇。因“X号”无车辆固定装置，夏某某、刘某某仅在车辆左后轮处塞上长方形木条、三角木防止其滑动，并且未要求驾乘人员离开驾驶室实行“人车分离”。次日凌晨3时许，“X号”行驶至平口镇安平村河段时，因刘某某操作不当，船体发生侧倾，致使所搭载的四台货运车辆滑入柘溪水库，沉入水中。该事故造成10名司乘人员随车落水，其中9人当场溺亡，直接经济损失100万元。 |
| [Performance of Duties by the Procuratorial Organ] | | 【检察机关履职过程】 |
| 1. Guiding investigation after arrest | | （一）捕后引导侦查 |
| After the accident occurred, the drivers of the X, Xia A and Liu A, voluntarily surrendered. The Public Security Bureau of Anhua County filed a case for investigation on suspicion of the crime of a major liability accident and arrested them with the approval of the procuratorial organ. When examining and approving the arrest, the People's Procuratorate of Anhua County held that the evidence of record was only sufficient to establish the course and consequences of the accident, and there was insufficient evidence of the establishment, operation, and management of the associate and whether the provisions on production safety were violated. While making the decision to approve the arrest, the People's Procuratorate of Anhua County proposed a detailed outline for continued evidence collection, requiring the public security organ to further investigate the investment, operation, and management of the four barges and whether the parties to the associate agreement formulated and complied with relevant provisions on the management of production safety. The public security organ subsequently made supplements and improvements to the above evidence, and transferred Xia A and Liu A to the People's Procuratorate of Anhua County on suspicion of the crime of major liability accident. | | 事故发生后，“X号”驾驶员夏某某、刘某某主动投案，安化县公安局对二人以涉嫌重大责任事故罪立案侦查，经检察机关批准，对二人采取逮捕措施。安化县人民检察院审查批准逮捕时认为，在案证据仅能证明事故经过及后果，而证明联营体的组建、经营管理及是否违反安全生产规定的证据尚未到位。作出批捕决定的同时，提出详细的继续取证提纲，要求公安机关进一步查清四艘平板拖船的投资、经营管理情况及联营协议各方是否制定并遵守相关安全生产管理规定等。后公安机关补充完善了上述证据，对夏某某、刘某某以涉嫌重大责任事故罪向安化县人民检察院移送起诉。 |
| 2. Accusations and proof of crime | | （二）指控和证明犯罪 |
| The People's Procuratorate of Anhua County initiated a public prosecution against Xia A and Liu A in the People's Court of Anhua County on suspicion of the crime of major liability accident. The People's Court of Anhua County held a trial of the case, during which the defense lawyer argued that if the case was determined as a crime of major liability accident in nature, Liu A should be acquitted, because he was not a shareholder of the accident-related vessel; and if it was determined as a traffic accident crime in nature, Xia A should be acquitted, because he was neither the driver who caused the accident nor gave instructions on or forced the act of driving in violation of rules. In response, the public prosecutor presented evidence such as the accident investigation report, the testimony by other shareholders and other witnesses, and receipts, and stated that Liu A was not only a shareholder of the associate vessel, but also was responsible for the operation and management of the X together with Xia A as arranged by the associate organization; and that as Xia A and Liu A performed illegal transportation, navigation at night, overloading, driving without a license or permitting driving without a license, and other acts in violation of provisions on safety management during the routine operation of management, both of them constituted the crime of a major liability accident. The People's Court of Anhua County held upon trial that the case was a water traffic accident within the scope of administration of public transportation, and thus changed the determination of nature, determining the charge as the traffic accident crime. | | 安化县人民检察院经审查，对夏某某、刘某某以涉嫌重大责任事故罪向安化县人民法院提起公诉。安化县人民法院公开开庭审理此案，庭审中，辩护律师辩称：该案若定性为重大责任事故罪，刘某某不是事故船舶股东，应宣判无罪；若定性为交通肇事罪，夏某某不是肇事驾驶员，也没有指使或强令违章驾驶行为，应宣判无罪。对此，公诉人出示事故调查报告、其他股东等证人证言、收据等证据，指出刘某某既是联营船舶的股东，又接受联营组织安排与夏某某一起负责经营管理“X号”；夏某某、刘某某在日常经营管理中，实施了非法运输、违规夜间航行、违规超载、无证驾驶或放任无证驾驶等违反安全管理规定的行为，二人均构成重大责任事故罪。安化县人民法院经审理认为该案是在公共交通管理范围内发生的水上交通事故，遂改变定性以交通肇事罪认定罪名。 |
| 3. Appeal | | （三）提出抗诉 |
| The procuratorial organ deemed upon examination that the first-instance judgment was erroneous in determining the charge, and appealed in accordance with the law, contending that the first-instance judgment was erroneous in the application of law, on the following main grounds: (1) The associate vessels were illegally for hire and used for dangerous operations for a long time. First, the four vessels were illegally manufactured by others under respective commission by shareholders including Zuo A, Xia A, and Liu A , each of them had no vessel's certificate of fitness, vessel registration, permit for water transportation, for-hire vessel certificate, and other operating qualifications, and were illegally used for the business of transportation of freight vehicles. Second, qualified seamen failed to be employed as required. The associate agreement only determined a benefit distribution plan, operators and managers. Zuo A and Duan A as the managers of the associate organization; and Xia Ying A, Xia A, and Liu A as the operators and managers of associate vessels violated the Production Safety Law of the People's Republic of China and the Regulations of the People's Republic of China on Administration of Traffic Safety in Inland Rivers by failing to formulate provisions on the management of safe operations and to employ seamen with certificates of competence. Third, associate vessels were used for long-term dangerous operations. Seamen failed to be arranged to participate in production safety education and training; freight vehicle securing facilities and safety rescue facilities failed to be installed on vessels; administrative punishment such as stoppage of voyages repeatedly imposed by maritime affairs, traffic management, and other organs were neglected, and so did safety provisions including "prohibitions on ferry and transportation services at night, prohibitions on overloading, and separation of freight vehicles and persons"; and the fixed load limit measures installed by relevant organs on vessels were removed without authorization for long-term dangerous operations. 2. Xia A and Liu A were the operators, managers, and drivers of the X, and the determination of the crime of major liability accident could more comprehensively and accurately evaluate their acts. Xia A and Liu A, as operators and managers of associate vessels, had participated in operations for a long time with knowledge of the above violations and dangerous operations, and as the drivers on the night of the accident, committed violations such as overloading, driving without a license, and speeding. They violated the provisions on safety management and transportation regulations, resulting in a major accident. Since the associate water transportation activities were for hire in nature and production and operating activities, not only transportation, it was more accurate to determine the charge as the crime of major liability accident and more comprehensive to evaluate their acts. The Intermediate People's Court of Yiyang City changed the first-instance determination of the charge at second instance and upheld the appeal opinion of the procuratorial organ. | | 检察机关审查后认为一审判决认定罪名有误，遂以一审判决适用法律确有错误为由，依法提出抗诉。主要理由：（1）联营船舶非法营运，长期危险作业。一是四艘船舶系左某某、夏某某、刘某某等股东分别委托他人非法制造，均未取得船舶检验合格证书、船舶登记证书、水路运输许可证、船舶营业运输证等经营资质，非法从事货运车辆运输经营。二是违反规定未配备适格船员。联营协议仅确定了利益分配方案和经营管理人员，左某某、段某某作为联营组织的管理人员，夏英某、夏某某、刘某某作为联营船舶的经营管理人员，违反《中华人民共和国安全生产法》《中华人民共和国内河交通安全管理条例》等规定，未制定安全作业管理规定，未配备拥有适任证的船员。三是联营船舶长期危险作业。未按规定组织船员参加安全生产教育培训，未在船舶上设置固定货运车辆的设施和安全救援设施，且无视海事、交通管理等部门多次作出的停航等行政处罚，无视“禁止夜间渡运、禁止超载、货运车辆人车分离”等安全规定，甚至私自拆除相关部门在船舶上加装的固定限载措施，长期危险营运。（2）夏某某、刘某某系“X号”经营管理人员和驾驶人员，认定重大责任事故罪更能全面准确评价二人的行为。夏某某、刘某某是联营船舶经营管理人员，对上述违规和危险作业情况明知，且长期参与营运，又是事故当晚驾驶人员，实施了超载运输、无证驾驶、超速行驶等违规行为，二人同时违反了有关安全管理的规定和交通运输法规，因而发生重大事故，由于联营船舶运输活动具有营运性质，是生产经营活动，不仅是交通运输，以重大责任事故罪认定罪名更为准确，更能全面评价二人的行为。益阳市中级人民法院二审改变一审罪名认定，支持检察机关抗诉意见。 |
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