The Groove [Editor's Note] As to whether the new product is an explosive in the criminal law, lawyer Wu Shizhu has been continuously researching since taking over the first case in 2017, involving the identification of explosives, the review and judgment of judicial appraisal opi

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[Editor's Note] As for whether the new product belongs to the explosives on the Criminal Law , lawyer Wu Shizhu has been continuously researching since taking over the first case in 2017, involving the identification of explosives, the review and judgment of judicial appraisal opinions, etc. For this reason, the following series of articles (limited to the space provided some links) and a manuscript for reviewing the appraisal opinions is formed.

Today, when studying another new case to find relevant documents, three prosecutors from the People's Procuratorate of Lucheng District, Zhejiang Province found that in 2021, three prosecutors published in the magazine "Chinese Procuratorate" in 2021, suddenly felt familiar, met too late, and met a soulmate. This article confirmed the predictions made by lawyer Wu Shizhu in related articles. Suisheng's understanding: the handling of complex and difficult cases requires thinking about solving problems and perseverance and perseverance in research and hard work, and will eventually be recognized. To this end, it is for reference by those in need when handling similar cases, so as to avoid any further series of wrong cases caused by wrong identification or misunderstanding.

Lawyer Wu’s previous related articles:

new technology or explosives? If there is one less wrong case in the world, there is one more reunion in the world.

Judicine cannot become an obstacle to emerging technologies Carbon dioxide Rock breaking technology does not belong to the "produce explosives"

Is the "carbon dioxide activator" an explosive that is strictly prohibited by the criminal law? The latest statement from the academician of the Academy of Engineering

Moin the judicial authorities have different understandings, resulting in unjust and wrong cases

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Judicial cannot become an obstacle to emerging technologies Carbon dioxide rock breaking technology does not belong to the "produce explosives"

Whether carbon dioxide crackers belong to the "explosives" in the criminal law

Dong Shitong Lu Jidong Lin Yi

Abstract: The determination of "explosives" is the core element of the crime of illegal manufacturing, trading, transportation, mailing and storing of explosives. For the identification of emerging technologies such as carbon dioxide crackers that may involve the scope of "explosives", an appraisal method that conforms to reality should be selected, and the focus should be on reviewing whether the appraisal method is scientific and reasonable, and it has both common characteristics and necessary distinctions from the traditional appraisal method. In-depth research and rational review of the basis for forming appraisal opinions, give full play to the pre-trial leadership and review and filtering functions of the procuratorate, falsify the appraisal opinions, and do not blindly follow or be partially trustworthy, make judgments that conform to the legal provisions and technical framework, so that the appraisal opinions return to their original meaning, rather than make conclusions.

Keywords: carbon dioxide cracking device, explosives, identification standards, substantive evaluation, the principle of humility,

has different understandings of the application of carbon dioxide cracking technology. In recent years, different regions across the country have identified related products based on carbon dioxide cracking technology as "explosives" prohibited by the criminal law, and there is a tendency to expand. At present, the nature of carbon dioxide crackers and other products is determined not only by to uniformly identify the "explosive" standard , but also popularize the understanding of the performance and functions of such products, so as to correctly apply the law, not be in vain or indifferent, and effectively enhance judicial authority.

1. Asked questions

[Case 1] In November 2018, Yao Moumou purchased 200 sets of carbon dioxide cracker devices from Ma Moumou at a price of 165 yuan per set (each set contains a steel pipe and a catalyst, the same below) for blasting operations. In November 2018, Yao Moumou purchased 100 sets of carbon dioxide cracking device from Ma Moumou and Zheng Moumou for blasting operations in the abandoned mining area behind the ZTO Express Transfer Station in the above-mentioned light industrial park.In May 2019, Yao Moumou purchased 300 sets of carbon dioxide cracking device from Ma Moumou and Zheng Moumou in the abandoned mining area behind the Zhongtong Express Transfer Station in the above-mentioned light industrial park. Later, because it was not used for blasting operations, Fan Moumou, Yao Moumou and Yuan Moumou transported the carbon dioxide cracking device to Xia Moumou's home in the next county, and was later seized by the police. It was identified that the white powder in the catalyst in the above-mentioned carbon dioxide cracking device is combustible and explosive, and is all explosive.

During the review, the procuratorate found that the focus of disputes in such cases mainly focuses on two aspects: (1) Whether the carbon dioxide cracking device is an "explosive", especially when emerging technologies are erupting without clear identification standards and industry norms, how to identify and judge the specific scope of the "explosive" and how to adopt and apply the appraisal opinions issued by the appraisal agency; (2) Whether the suspects Yao and Fan are subjectively aware that the carbon dioxide cracking device is an "explosive", especially when there are completely opposite appraisal opinions provided by the suspect and the "Judicial Appraisal Opinion" commissioned by the public security organs, it is necessary to carefully determine the legal rules and technical standards.

is different from the traditional chemical reaction blasting method. The carbon dioxide cracker is a physical cracking and will not generate heat, gas and shock waves. Carbon dioxide cracking is an emerging technology. Without a deep understanding of the product involved and familiar with the product performance and working principles, it is impossible to understand the working principles and methods of carbon dioxide cracking technology based on product photos and witness testimony recorded in the case file, which brings difficulties to judicial personnel to accurately determine the nature of the carbon dioxide cracking device. When handling cases of "explosive" crimes of carbon dioxide-induced crackers, the appraisal opinion is the key evidence, but only relies on traditional appraisal opinions to make a decision, which can easily lead to judicial arbitrage.

2. Basic ideas for handling "explosive" crimes of carbon dioxide crackers

(I) The origin of whether carbon dioxide crackers are "explosives" Exploration of the new technology of rocks involved in the "explosives" of carbon dioxide gas involved in the "explosives". It is not the traditional explosive blast, but the explosive force of the instantaneous expansion of carbon dioxide gas through the catalyst causes the rock to crack, which is actually "swelling". There are many products derived from carbon dioxide gas expansion and cracking technology, including "carbon dioxide cracking device", "catalyst", "activator (agent)", etc. They can be essentially classified as carbon dioxide cracking device, which is essentially a "rock-breaking device". Most of the carbon dioxide cracking device is used in deserted mountains and wilderness, away from people, etc. The method is to drill holes in the rock, insert the device, ignite it with an ignition tool, and then use a series of reactions to stimulate the carbon dioxide expansion gas, causing the rock to crack due to gas expansion. Of course, in the process of causing carbon dioxide expansion, a small number of applications of several chemical products will be involved. The application of carbon dioxide gas blasting technology to change the traditional dangerous methods of using explosives to break mountains and rocks is a very mature experience abroad. However, this technology is still a new technology in my country that is in the stage of application technology research and promotion and improvement, that is, the high-speed expansion energy generated by gasification by external energy is used to shatter the rock and soil. It is more environmentally friendly, effective, safe, convenient and economical than traditional explosive technology.

Before my country's laws explicitly stipulate, if a new technology or new product is recognized as a criminal ban, it will not only be detrimental to the economic development of society and the protection of citizens' personal rights and interests, but also be detrimental to encourage social technological innovation. Therefore, the overall idea is to conduct a substantial evaluation of whether the carbon dioxide cracker is an "explosive" based on following objective laws and complying with technical certification. Considering that blasting products such as carbon dioxide crackers are not currently included in the management of explosive materials in my country and are not prohibited from being used in rock rupture operations, such items cannot be evaluated as "explosive materials" in criminal law crimes.

(II) The actual consideration of the risk of validity identification of the appraisal opinion

2012 Criminal Procedure Law amended the "appraisal conclusion" to "appraisal opinion". Because the "conclusion" is unique, and the "opinion" is only an evidence material and cannot be used as a basis for a finalization. Its evidence ability and proving power need to be comprehensively reviewed and judged. [1] Whether the basis for the appraisal is sufficient, decide whether the appraisal opinion can be accepted. As the appraisal opinion as a key final evidence, if there is no basis for the appraisal, it means violating the statutory principle of crime and punishment . At present, there are no clear national identification standards for the identification of "explosives". At present, the country is formulating product standards, production and operation license methods, scope of use and subject qualifications for carbon dioxide gas blasting equipment, and the Ministry of Public Security is organizing research and formulating judicial appraisal standards for "explosives". Therefore, the identification opinions of carbon dioxide cracking products have a risk of effectiveness due to lack of basis and are difficult to use as evidence for finalization.

Specifically, although the content of the catalyst was sent to the National Civil Blasting Equipment Quality Inspection Center and the Chemical Materials Testing Center of Nanjing University of Science and Technology for inspection, it was explosive after inspection (using the method of burning and identification on alcohol lamp ). However, the three appraisal opinions have different conclusions and different usage methods: (1) The inspection report provided by the parties and lawyers is tested by impact and friction methods, and is determined not to be explosive; (2) The appraisal opinions of the Judicial Appraisal Center of Guizhou Police College are tested by detonator insertion and detonation method, and are analyzed and determined to be fired; (3) The national civil explosion and Nanjing Science and Technology issued an appraisal opinion, burning with alcohol lamps, which is "intermittent combustion, with Mars", and then passed the time/stress test, and the result is explosive. First, the above identification opinions are tested using different methods, with different inspection methods, and different conclusions are drawn, and there is a lack of authoritative evaluation of the acceptance of the results. Secondly, from the perspective of the opinions and results, the latter two are "criminal tendencies" identification opinions, and the results are also different. The former determines it as an explosive, while the latter considers it as an explosive; from a logical conclusion, the latter only represents a certain nature and has not been determined whether it belongs to an "explosive". Whether an explosive is an "explosive substance" does not necessarily hold. Therefore, it is difficult to determine the subject of criminal offences in criminal law. The appraisal opinions provided by the defense were found to be non-explosive, and the opinion was the conclusion of "innocence-free tendency". The three appraisal opinions lack sufficient authority and exclusivity to determine that the carbon dioxide cracker involved in the case is an "explosive".

(III) Is subjectively aware that the carbon dioxide cracker belongs to "explosives"

"In the subjective aspect, the punishment is consistent with the personal danger of the criminal" [2], and the subjectively knowing judgment of the perpetrator is carried out. To determine whether the perpetrator is subjectively aware of the subject, three main factors are considered: one is whether the confession of guilt should be true. From the confession confession, it is directly inferred that subjective knowledge is simply relying on subjective confession and then determining whether subjective knowledge is a relatively stable method at present and whether there is a risk of overturning. The second is whether the subjective presumption is appropriate. Subjective presumption requires the use of evidence to reason in line with experience and logic [3], which is mainly based on the knowledge of specific matters and involves judgments about illegality. The evaluation of illegality is based on ordinary people. When ordinary people commit the act, they deny the illegality of the act; "When ordinary people do not do it, but the perpetrator performs it, it is illegal." [4] The third is to pay attention to whether the obligation is sufficient. For practitioners who illegally manufacture, sell, transport, mail, and store "explosives", whether there is a necessary industry access or education prerequisite, and whether they should produce and operate according to legal procedures and act as the obligation of prudent attention of the administrative counterparty of . If the obligation to pay attention to the relevant links is violated, it can be judged that the perpetrator is subjectively in a state of laissez-faire or hope.

Case 1, when the suspect Yao Moumou purchased the carbon dioxide cracking device, the other party provided him with the " hazardous chemical business license ", "test report", "inspection report" and other supporting materials for such products through WeChat , which made him believe that the previous company had a business license, and the carbon dioxide gas cracking equipment sold was not explosive. Although the channel was not formal, he did not subjectively have a necessary understanding of whether the carbon dioxide cracking device is an "explosive". Similarly, in the case, the evidence cannot be determined that the suspect Fan, who only participated in the transport, had no similar experience in similar products such as carbon dioxide crackers and lacked the necessary understanding, and subjectively had the intention to know that the carbon dioxide crackers were "explosives".

(IV) The necessary reference for cases related to the crime of carbon dioxide crackers is

, on the one hand, the final processing decision has a regional difference. In cases where carbon dioxide gas cracking agents are involved in crimes, the identification and handling results of the products involved are very different. There are both guilty verdicts and non-prosecution treatments, and there are even differences in crime and non-crime treatments for the same product produced by the same manufacturer, which exposes the lack of unified standards for handling such cases.

[Case II] Zhang Moumou, head of the production department of Hubei Zhaodong Machinery Co., Ltd., produced a total of nearly 40,000 carbon dioxide activators. The activators are the supporting equipment for carbon dioxide cracking machines produced by the company, and have obtained a national utility model patent in cracking technology. The public security organs transferred to for review and prosecution. On June 11, 2018, the Jingshan County Procuratorate of Hubei Province made the decision to not prosecute , and determined that the activator involved in the case was not an "explosive" for illegally manufacturing explosives. The appraisal opinion poses a risk of judicial appraisal effectiveness due to lack of basis, and subjectively there is no intention of "illegal manufacturing".

[Case III] In order to catch up with the progress of the project, Bao Moumou started in early May 2017. Without blasting approval, he successively purchased more than 3,000 carbon dioxide activators with a specification of 40 cm from Hubei Zhaodong Machinery Co., Ltd., and allowed Chen Moumou, Mao Moumou, Cheng Moumou, Xiong Moumou and others who did not have blasting qualification certificates to assemble carbon dioxide crackers at their contracting site for rock blasting operations. On September 4, 2018, the Wenling City Court of Zhejiang Province adopted the appraisal opinion and determined that the carbon dioxide activator involved was "explosives". Bao Moumou was sentenced to five years and six months in prison for illegally buying and selling and storing explosives.

Case 2 and 3, the carbon dioxide cracker involved, are all produced by Hubei Zhaodong Machinery Co., Ltd., but are facing differential treatment. Regarding the appraisal opinion, the Jingshan County Procuratorate believes that "the appraisal opinion has a risk of judicial appraisal due to lack of basis", but the Wenling Court believes that the Judicial Appraisal Center of Guizhou Police Vocational College has made an appraisal of the items involved, believing that the powders involved have explosive properties, are explosive items, and are mixed explosives. The appraisal is made by an appraisal institution with legal qualifications and conditions and an appraiser with relevant professional skills and professional titles. The content is true and the procedures are legal. The items involved are among the explosives listed in Article 1 of the Supreme People's Court's "Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases such as Illegal Manufacturing, Selling, Transportation of Firearms, Ammunition, Explosives and other Criminal Cases, and are explosives in the sense of criminal law.

On the other hand, there is a standard deviation in the referee case scale. On August 25, 2021, the keyword index of "carbon dioxide cracking device" was conducted through the "China Judgment Document Network", and a total of 28 criminal judgment documents were retrieved. From the perspective of level trials, grassroots courts heard 22 cases and intermediary courts heard 6 cases; from the perspective of sentences, 17 cases were sentenced to actual sentences, and 11 cases were sentenced to probation (2 cases were determined to commit crimes and sentenced to fines); from the perspective of judgment years, 11 cases were found in 2018, 11 cases were in 2019, and 6 cases were in 2020; in terms of regional distribution, 9 cases were in Zhejiang Province, 5 cases in Jiangsu Province, 3 cases in Shandong Province and Guangdong Province, 2 cases in Guangxi Zhuang Autonomous Region and Chongqing City, and 1 case in Anhui Province, Henan Province, Hunan Province, and Yunnan Province.Nearly 40% of the sentences apply probation to the defendants' crimes, and 60% are sentenced to actual sentences and have a heavy sentence (concentrated on fixed-term imprisonment of more than 5 years). The main reason is that different standards for accepting appraisal opinions from different judicial organs lead to contradictions in the application of laws. Therefore, the highest judicial organs need to take the lead to standardize and unify the acceptance standards of appraisal opinions, and reverse the tendency to rely too much on appraisal opinions.

3. Extended thinking on the identification standards for carbon dioxide crackers "explosives"

(I) Pay attention to re-producing the technical certification, correcting the source and ensuring the bottom line of theory

legally identifying and judging a certain technology, and essential traceability of this technology is required. To define whether an item is a "explosive" in the technical sense, it is necessary to have three elements of explosion, namely, chemical reaction exothermicity, high velocity of chemical reactions, and chemical reaction products. Mr. Wang Xuguang, an academician of the Chinese Academy of Engineering and director of the Expert Committee of the China Blasting Industry Association, pointed out that "a blasting technology that uses the expansion of the liquid carbon dioxide under heat gasification has significant characteristics such as no high temperature, no open flame, small vibration and low pollution. It is especially high safety and irreplaceable in underground coal mine top coal mining and coalbed methane extraction and blasting operations, and has obvious protection effect on aquatic organisms in underwater blasting operations." [5] New technologies such as

carbon dioxide expansion and blasting have the following characteristics. First, "a blasting technology that uses liquid carbon dioxide to expand by heat vaporization" is an expansion-type physical reflection rather than a burst-type chemical reaction. The Criminal Law does not specify that gas expansion products are "explosives". Secondly, the characteristics of this technological blasting are "no high temperature, no open flame, small vibration and low pollution", which obviously does not meet the three elements of explosion. Finally, from the perspective of the applicable gas blasting effect of coal mines, underwater and other environments, it is "highly safe and irreplaceable." In fact, "carbon dioxide gas cracking technology" is a comprehensive supporting equipment, containing "cracking device", "activater", "activater", etc., "is a blasting technology with advanced concepts, safe methods and significant effects. It is a physical cracking technology. It has the advantages of no spark exposure during cracking, high cracking power, no need for gun inspection, simple operation, and is not a civil explosive product. Its transportation, storage and use are exempt from approval, and is widely used by many stone projects."[6]

(II) Do a good job in falsifying the appraisal opinions, make a law-based judgment in fact. In criminal cases, people with special knowledge need to appraise special matters, but in fact, these appraisal opinions that were originally indicated for reference only often become "criminal opinions", resulting in the emergence of re-appraisal, supplementary appraisal, and other opinions on the emergence of or wrong cases. When handling new technology crime cases such as carbon dioxide expansion and explosion, the procuratorate should focus on reviewing the basis for the appraisal opinions involved in the case, conduct in-depth research, rational review, and comprehensive judgment. At the same time, it is very important to review such cases rationally, make necessary falsification of the appraisal opinions and make judgments that comply with the legal provisions and technical frameworks. It not only reflects the objective and fair position in the procuratorial case handling, but also ensures that the conclusions are in line with reality through personal review, ensure that the law is implemented correctly, ensure that the cases handled can withstand the test of history and law, and allow the parties involved to feel the rational, fair and just judicial.

Theoretical view generally believes that explosives refer to explosives with greater explosives or destructive properties, including military explosives, such as landmines, bombs, grenades, and blasting equipment listed in the "Hyper Safety Management Regulations for the Management of Civil Explosive Materials ". [7] Military explosives are basically chemical explosives, and new technologies such as carbon dioxide expansion and explosion have not yet entered the military field. Civil blasting equipment, according to the "Civil Explosive Items Name Table" formulated by the National Defense Science and Technology Commission and the Ministry of Public Security, is mostly chemical explosives, detonators, ignition equipment and their raw materials, and has not included new technology derivative products such as carbon dioxide expansion and blasting.In case 1, under the premise that the product involved does not have national standards, industry standards, etc., according to the "H General Rules for Judicial Appraisal Procedure ", the opinions of authoritative experts in the field of explosives and blasting technology can become an effective reference basis, and items that do not have the three elements of explosion cannot be identified as "explosives".

(III) Optimize the pre-trial leading function, fully perform duties to ensure the development of the industry

When handling new technology crime cases such as carbon dioxide expansion and explosion, strictly distinguish the boundaries of formal crimes from substantive crimes, deviations in technological exploration and exploit loopholes to commit crimes, and fully consider the actual development needs of emerging technology industries and the numerous related products involved. Severe crackdowns on such criminal cases will affect the healthy development of many enterprises and the entire industry, and will be detrimental to social stability and economic development. From the perspectives of assisting social governance, protecting technological innovation, and serving the development of the industry, we should carefully handle new technology crimes such as carbon dioxide expansion and explosion to avoid related enterprises and practitioners being wrongly classified and held criminally. Based on the position of protecting legal interests, strictly grasp the harm of society and the infringement of legal interests, is exempted from criminal liability for perpetrators who lack the possibility of understanding of illegality. [8] Those who seriously violate the provisions of the state's mandatory laws and cause serious consequences shall be punished in accordance with the law; those who lack judicial practice support shall implement the principles of modesty in the criminal law and the statutory of the crime and criminal , resolutely eliminate "prosecution with illness", and not prosecute in accordance with the law to maximize the effectiveness of case handling.

At present, my country's economy has entered a new stage of technological innovation-driven and high-quality development of . Emerging technologies are emerging in the timely manner. From the perspective of long-term healthy and sustainable development of the industry, the procuratorate can give full play to the role of pre-trial leading and pre-trial filtering. Through the handling of new technology criminal cases such as carbon dioxide expansion and explosion, strengthen case handling forward and backward extension, explain the law with the case and lead the whole, further clarify the criminal positioning of this technology, eliminate potential legal risks, help enterprises put down their burdens, go into battle lightly, and use their own full performance of their duties and innovative performance to ensure the development of emerging industries.

(IV) Actively integrate judicial affairs into governance, and take a multi-pronged approach to help improve the standards and

systematically sort out the carbon dioxide cracker-induced cases handled within a certain period of time, form a special analysis report, and put forward social governance suggestions based on case handling extension. On this basis, targeted prosecutorial recommendations are put forward on common and potential management loopholes and weak links, and standardize the illegal manufacturing, buying, selling, transportation, mailing, storage of potential "explosive" products, such as carbon dioxide crackers. For those who need to build consensus and supervise governance on a larger scale, governance suggestions can be transformed into opinions and suggestions of NPC deputies or proposals of CPPCC members . Through " Two Sessions ", we will attract the attention of NPC deputies and CPPCC members, strive to promote special rectification, and even form implementation opinions at the applicable legal level, so as to achieve a leap from technical recognition to legal matching.

The key to identifying standards for such "explosives" should be grasped at three levels. First, meet the formal conditions. The carbon dioxide cracking device must not only be classified into the category of "explosives" in terms of literary interpretation, but also meet the basic characteristics of "explosives" in terms of requirements. Secondly, it meets the substantive requirements. It is required that the matter to be determined is an act that is actually not allowed by law, that is, it poses a certain infringement or threat to the legal interests protected by the criminal law, and has a certain basis for criminal penalties and legitimacy. Again, it meets the expectations of the people. Implement the principle of modesty in criminal law, so that the judicial judgments and conclusions made are in line with the basic cognition of the general public [9] and are acceptable. From the first case, there is only the evidence in the case, and there is only the appraisal opinion that the carbon dioxide cracking device is an "explosive", but the suspect argued that the carbon dioxide cracking device was smashed with a hammer or burned with fire in daily life, and the determination that it is an "explosive" will exceed the general public's conventional understanding of "explosive" and does not have the possibility of expectation . Therefore, in this case, Yao and Fan do not have a subjective knowledge that they believe that the carbon dioxide cracker is an "explosive".