May 31, 2010
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Guiding Case No. 96 of the Supreme People's Procuratorate: People v. Huang A et al. (case of a major liability accident and misreporting a safety accident)
Guiding Case No. 96 of the Supreme People's Procuratorate: People v. Huang A et al. (case of a major liability accident and misreporting a safety accident) 检例第96号:黄某某等人重大责任事故、谎报安全事故案
Guiding Case No. 96 of the Supreme People's Procuratorate 检例第96号
[Keywords] 关键词
crime of misreporting a safety accident, guiding investigation and evidence collection, treatment of pollution, resolution of a social conflict 谎报安全事故罪 引导侦查取证 污染处置 化解社会矛盾
[Key Points] 【要旨】
A procuratorial organ shall maximize the working mechanism connecting administrative law enforcement with criminal justice, and strengthen the legal supervision of transfer of clues and the filing of cases by actively performing their duties. To determine the crime of misreporting a safety accident, examination shall be focused on the causation between misreporting and the delay in accident rescue attempt. If both the crime of major liability accident and the crime of misreporting a safety accident are committed, punishment for the crimes shall be combined. Attention shall be paid to urging the accident-related entity or the relevant authority to promptly compensate the injured parties for their losses, so as to effectively resolve social conflicts. If a production safety accident involves ecological and environmental pollution and other damages to the public interest, the criminal prosecutorial department shall strengthen cooperation with the public interest litigation prosecutorial department, urge and coordinate with administrative regulatory organs, coordinate the use of legal, administrative, economic, and other means to strictly implement the primary responsibility of enterprises, repair the damaged public interest, and prevent and control security risks. 检察机关要充分运用行政执法和刑事司法衔接工作机制,通过积极履职,加强对线索移送和立案的法律监督。认定谎报安全事故罪,要重点审查谎报行为与贻误事故抢救结果之间的因果关系。对同时构成重大责任事故罪和谎报安全事故罪的,应当数罪并罚。应注重督促涉事单位或有关部门及时赔偿被害人损失,有效化解社会矛盾。安全生产事故涉及生态环境污染等公益损害的,刑事检察部门要和公益诉讼检察部门加强协作配合,督促协同行政监管部门,统筹运用法律、行政、经济等手段严格落实企业主体责任,修复受损公益,防控安全风险。
[Basic Facts] 基本案情
Defendant: Huang A (with partial name withheld), male, former legal representative and executive director of Fujian A Petrochemical Industry Co., Ltd. ("A Company"). 被告人黄某某。
Defendant: Lei A (with partial name withheld), male, former deputy general manager of A Company. 被告人雷某某。
Defendant: Chen A (with partial name withheld), male, former executive deputy general manager and director of the Production Safety Management Committee of A Company. 被告人陈某某。
Defendant: Chen Xiao A (with partial name withheld), male, former wharf operator of A Company. 被告人陈小某。
Defendant: Liu A (with partial name withheld), male, former chief of the wharf operational team of A Company. 被告人刘某某。
Defendant: Lin A (with partial name withheld), male, former seaman on the vessel "Tiantong 1" of B Shipping Co., Ltd. ("B Company"). 被告人林某某。
Defendant: Ye A (with partial name withheld), male, former seaman on the vessel "Tiantong 1" of B Company. 被告人叶某某。
Defendant: Xu A, male, former manager of the Safety and Environmental Protection Department of A Company. 被告人徐某某。
In March 2018, C Material Technology Co., Ltd. ("C Company") signed a contract for leasing of warehouses of goods with A Company, leasing the 3005# and 3006# storage tanks of A Company to store a cracking C9 for industrial use ("C9") purchased from Fujian A Petrochemical Co., Ltd. (with partial name withheld). That same year, B Company signed a water transportation contract with C Company, and appointed the vessel Tiantong 1 to be loaded with C9 at the terminal of A Company. 2018年3月,C材料科技有限公司(简称C公司)与A公司签订货品仓储租赁合同,租用A公司3005#、3006#储罐用于存储其向福建某石油化工有限公司购买的工业用裂解碳九(简称碳九)。同年,B公司与C公司签订船舶运输合同,委派“天桐1”船舶到A公司码头装载碳九。
At about 16:00 on November 3 of the same year, the vessel Tiantong 1 berthed at the 2000-ton wharf of A Company, preparing to receive C9 from the 3005# storage tank of A Company. At around 18:30, Liu A and Chen Xiao A on duty started C9 loading operations. As the wharf crane had been malfunctioning since 2018, they operated in violation of rules, manually dragging the oil hose to connect the terminal valve of the pipeline transporting C9 onshore with the cargo oil valve of the vessel. Chen Xiao A fastened the oil hose with ropes to the supporting leg of the operating platform on the shore, and the person on duty aboard the vessel fastened the oil hose aboard to the starboard guardrail of the vessel. At about 19:00, Liu A and Chen Xiao A opened the oil transportation valve of the wharf and began transporting C9. In the meantime, defendant Xu A as the duty manager, Liu A and Chen Xiao A as the on-site operational team chief and operator, and Ye A and Lin A as the duty boatswain and seaman each failed to inspect the loading within their respective purview as required. On the early morning of November 4, the oil hose ruptured because the limited part between its two ends fastened with ropes was overstretched, causing a leakage of about 69.1 tons of C9, leaving the waters and air, among others, near the wharf of A Company polluted, and 69 nearby residents unwell and receiving medical care. The leaked C9 spread across the oil fence to the cage culture area in the nearby waters, and dissolved part of floats, causing cages to sink. 同年11月3日16时许,“天桐1”船舶靠泊在A公司2000吨级码头,准备接运A公司3005#储罐内的碳九。18时30分许,当班的刘某某、陈小某开始碳九装船作业,因码头吊机自2018年以来一直处于故障状态,二人便违规操作,人工拖拽输油软管,将岸上输送碳九的管道终端阀门和船舶货油总阀门相连接。陈小某用绳索把输油软管固定在岸上操作平台的固定支脚上,船上值班人员将船上的输油软管固定在船舶的右舷护栏上。19时许,刘某某、陈小某打开码头输油阀门开始输送碳九。其间,被告人徐某某作为值班经理,刘某某、陈小某作为现场操作班长及操作工,叶某某、林某某作为值班水手长及水手,均未按规定在各自职责范围内对装船情况进行巡查。4日凌晨,输油软管因两端被绳索固定致下拉长度受限而破裂,约69.1吨碳九泄漏,造成A公司码头附近海域水体、空气等受到污染,周边69名居民身体不适接受治疗。泄漏的碳九越过围油栏扩散至附近海域网箱养殖区,部分浮体被碳九溶解,导致网箱下沉。
After the accident occurred, Lei A arrived at the scene to request the verification of the leakage of C9 from Lu A, deputy manager of the Production and Operation Department of A Company, and Zhuang A, a measurement officer, and after being informed that the actual leakage was about 69.1 tons, required the vessel party to conceal the cause of the accident and the leakage. Huang A, Lei A, and Chen A decided after a discussion to misreport in the external notification and the report to the relevant organs that the cause of the accident was the aging of flange gaskets and that the leakage of C9 was 6.97 tons. A Company also failed to initiate the first-level emergency response procedure in accordance with the relevant provisions such as the special emergency plan for marine oil spill accidents, resulting in the failure to arrange for emergency response personnel to make an accident rescue attempt in a timely and effective manner, directly delaying the accident rescue attempt, further aggravating the harmful consequences of the accident, and creating a negative social impact. As audited, the accident caused a direct economic loss of 6,727,300 yuan. Under the authority of the Ecology and Environment Bureau of Quanzhou City, the South China Institute of Environmental Sciences of the Ministry of Ecology and Environment issued a technical assessment report, determining that the C9 leaked in the accident was a mixture of complex components, of which dicyclopentadiene accounting for the highest percentage was a low-toxic chemical which irritated eyes, skin, respiratory tract, and alimentary canal system in the case of long-term exposures, and was in danger of burning and explosion if exposed to open fire, high heat, or oxidants. The C9 leaked in this accident had an impact on sea water quality for 25 days, on marine sediments and intertidal mudflats for 100 days, on marine life quality for 51 days, and on marine ecology for about 100 days maximum based on the volatilization of all residual pollutants in the intertidal zone. 事故发生后,雷某某到达现场向A公司生产运行部副经理卢某和计量员庄某核实碳九泄漏量,在得知实际泄漏量约有69.1吨的情况后,要求船方隐瞒事故原因和泄漏量。黄某某、雷某某、陈某某等人经商议,决定在对外通报及向相关部门书面报告中谎报事故发生的原因是法兰垫片老化、碳九泄漏量为6.97吨。A公司也未按照海上溢油事故专项应急预案等有关规定启动一级应急响应程序,导致不能及时有效地组织应急处置人员开展事故抢救工作,直接贻误事故抢救时机,进一步扩大事故危害后果,并造成不良的社会影响。经审计,事故造成直接经济损失672.73万元。经泉州市生态环境局委托,生态环境部华南环境科学研究所作出技术评估报告,认定该起事故泄露的碳九是一种组分复杂的混合物,其中含量最高的双环戊二烯为低毒化学品,长期接触会刺激眼睛、皮肤、呼吸道及消化道系统,遇明火、高热或与氧化剂接触,有引起燃烧爆炸的危险。本次事故泄露的碳九对海水水质的影响天数为25天,对海洋沉积物及潮间带泥滩的影响天数为100天,对海洋生物质量的影响天数为51天,对海洋生态影响的最大时间以潮间带残留污染物全部挥发计,约100天。
[Performance of Duties by the Procuratorial Organ] 【检察机关履职过程】
1. Intervening in investigation (一)介入侦查
The accident investigation team determined that the accident was a chemical leak accident caused by the failure to implement enterprise responsibilities for production management. After the accident occurred, the People's Procuratorate of Quangang District, Quanzhou City discussed the nature of the accident and the direction of investigation and evidence collection with the former safety supervision organs and public security organs of Quanzhou City and Quangang District. The People's Procuratorate of Quangang District claimed based on the information in its possession and the guiding opinions of provincial and municipal procuratorates that the case-related persons might be suspected of the crime of major liability accident and the crime of misreporting a safety accident. On November 10 and November 23, 2018, the Quangang Public Security Sub-branch filed a case to investigate eight persons including Huang A respectively on suspicion of the above two crimes. The People's Procuratorate of Quangang District intervened in advance to guide the investigation, and proposed the direction and focus of evidence collection: the evidence on the spot should be perpetuated as soon as possible, and the evidence sufficient to establish that the case-related persons engaged in operations in violation of rules and failed to perform the duty to inspect and manage hidden risks on a day-to-day basis and evidentiary materials such as vessel safety management documents, operational procedures for using composite hoses, procedures for safe operations at oil tanker wharfs, and the operational procedures of A Company should be obtained; in accordance with the determined nature of the case, the investigation of the crime scene should be strengthened, and the corroborating relationship between the investigation of the scene and oral evidence should be enhanced; and attention should be paid to obtaining objective evidence and comprehensively obtaining electronic evidence such as surveillance videos, voice calls, text messages, and chat records. In the process of investigation, the handling of the case continued to be tracked, and opinions and proposals were further given on the determination of facts, the application of compulsory measures, and the regulation of case handling procedures, among others. After approving the arrest of the relevant responsible persons, the People's Procuratorate of Quangang District issued the Opinion on the Continuous Investigation and Evidence Collection of an Arrest Case on November 24, requiring the public security organ to promptly obtain the accident investigation report, collect and perpetuate evidence of direct economic loss, personal injury, and environmental pollution, among others, authorize the relevant institution to issue an inspection report on the characteristics of C9, and obtain evidentiary materials related to the A Company's misreporting of the cause of the accident and the amount of leakage and the delay in rescue by its misreporting, and tracked and guided the investigation and evidence collection throughout the process. The public security organ made sufficient supplements to the above evidence, laying a solid foundation for subsequent case handling. 2018年11月6日,福建省检察院检察干警赴泉港开展督导。
2. Examination and prosecution (二)审查起诉
After the case had been transferred for prosecution, the People's Procuratorate of Quangang District formed a case-handling team with its chief procurator as the lead public procurator, which in response to the opinion given by defendant Chen A and his defender that Chen A did not commit the crime of major liability accident because he, though appointed to the office of executive deputy general manager, neither participated in production safety in effect nor performed the job responsibilities for production safety, promptly required the public security organ to obtain the relevant internal materials from A Company, and established that Chen A actually performed the duties of production safety of A Company, and was the primary person responsible for production safety. For the issue, among others, that the description issued by the public security organ of the process of voluntary surrender of Chen A, Liu A, and Chen Xiao A was inconsistent with the actual circumstances of the case, an independent investigation was made for verification by interrogating defendants and requesting verification from the accident investigation team. According to the investigation, the public security organ brought Chen A, Liu A, and Chen Xiao A to the case handling center for examination based on the clues in its possession, and none of them voluntarily appeared. This case was not returned for supplementary investigation. On June 6, 2019, the People's Procuratorate of Quangang District initiated public prosecution against Huang A, Lei A, and Chen A, on suspicion of the crime of major liability accident and the crime of misreporting a safety incident, and against five persons including Chen Xiao A, on suspicion of the crime of major liability accident, in the People's Court of Quangang District, and gave sentencing proposals respectively. 案件移送起诉后,泉港区人民检察院成立以检察长为主办检察官的办案组,针对被告人陈某某及其辩护人提出的陈某某虽被任命为常务副总经理职务,但并未实际参与安全生产,也未履行安全生产工作职责,其不构成重大责任事故罪的意见,及时要求公安机关调取A公司内部有关材料,证实了陈某某实际履行A公司安全生产职责,系安全生产第一责任人的事实。针对公安机关出具的陈某某、刘某某、陈小某系主动投案的到案经过说明与案件实际情况不符等问题,通过讯问被告人、向事故调查组核实等方式自行侦查进行核实。经查,公安机关根据掌握的线索,先后将陈某某、刘某某、陈小某带至办案中心进行审查,3人均不具备到案的主动性。本案未经退回补充侦查,2019年6月6日,泉港区人民检察院以黄某某、雷某某、陈某某涉嫌重大责任事故罪、谎报安全事故罪,以陈小某等5人涉嫌重大责任事故罪向泉港区人民法院提起公诉,并分别提出量刑建议。
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