Investigation of a Certain Dangerous Operation Case

[ Keywords 】Criteria for determining imminent danger; voluntary surrender; conviction with exemption from punishment

[ Counseling Attorney Zou Donghui

[ Basic Facts of the Case 】

The defendant, Xiu Mou, is the owner of a stall in a certain market.

Facts Found in the Indictment and Allegations: The defendant, Xiu, purchased 10 boxes of “8-shot plastic disc caps” (red Ba Huan firing caps) from his supplier, Zhang, and stored them at his stall in a small commodity wholesale market that he operated. These items were subsequently seized by public security authorities. Examination revealed that the items in question contained pyrotechnic compositions.

The prosecution argues that the defendant, Xiu, without obtaining the legally required permit, engaged in highly hazardous production activities involving the storage of dangerous substances, posing a real risk of causing major casualties or other serious consequences. Therefore, he should be held criminally liable for the crime of dangerous operations.

The defendant pleaded guilty and accepted the punishment.

The defense counsel argued that the defendant’s actions did not pose a real danger of causing major casualties or other serious consequences, and thus submitted a plea of not guilty. At the same time, the counsel maintained that the defendant should be recognized as having voluntarily turned himself in. Taking into account other sentencing factors, even if convicted, the defendant should be exempted from criminal punishment.

After trial, the court delivered a verdict convicting the defendant but exempting them from punishment; this verdict is now in effect.

[ Case Highlights 】

Conviction with exemption from punishment.

[ Typical significance 】

Whether “real danger” exists is the primary point of contention between the prosecution and the defense in this case. Although the relevant defense arguments were not adopted by the court, neither the prosecution nor the trial court provided a targeted and effective response to this issue. The verdict of conviction with exemption from punishment may, however, reflect the court’s true stance on this very issue.

Regarding whether this case constitutes the crime of dangerous operations, the handling attorney primarily elaborated and explained from the following aspects:

First, it is held that to constitute this crime, three conditions must be met simultaneously: (1) one of the three types of behaviors—violating relevant safety management regulations—must have been committed during production or operations; (2) the commission of such behavior must pose a danger of causing major casualties or other serious consequences; and (3) the danger of causing major casualties or other serious consequences must reach a level of imminent and real danger. Among these, the first condition specifically defines the nature of the conduct constituting this crime; the second condition limits the severity of the potential accident consequences that may result from such conduct; and the third condition specifies the degree of urgency that the dangerousness of the conduct must attain.

Second, based on the Supreme People’s Court judges’ interpretation of how to determine whether a “real danger” exists for the commission of this crime, and in light of the facts of this case, we hold that fireworks and firecrackers whose primary combustible and explosive ingredient is pyrotechnic composition do not pose a real danger of spontaneous combustion or explosion when stored in environments that are far from ignition sources, free from high temperatures, and not subjected to compression. Furthermore, under normal handling conditions—rather than being thrown or dropped in a rough or violent manner—they also do not pose a real danger of explosion.

Third, it is believed that the items involved are fireworks and firecrackers classified as relatively low-risk under the relevant national regulations, and they are all packaged in whole boxes and stored under normal conditions. There are no external factors—such as impacts, strong compression, or friction—in the vicinity of their storage that could trigger an explosion. Therefore, there is no real risk of an explosion leading to an accident.

Based on the foregoing reasons, we hold that merely because the defendant operated hazardous materials without authorization does not automatically qualify their conduct as the crime of dangerous operations. Instead, it is crucial to examine whether their operational activities actually pose a real risk of causing major casualties or other serious harmful consequences. If no such real risk of accidents has materialized—rather, the risk is only potential or accidental in nature—then their actions of operating and storing the items in question cannot be characterized as the crime of dangerous operations.

Moreover, the sole basis upon which the prosecution relied to establish that this case constituted a “real danger” was the opinion issued by the appointed expert, which explicitly stated the existence of such a “real danger.” However, not only did this opinion suffer from serious procedural violations in its issuance, but its specific content also failed to reflect the concept of “real danger” as defined under this crime. For these reasons, the court, in the reasoning section of its judgment, did not analyze or evaluate it as a basis for rebutting the defense’s arguments.

In addition to the qualitative issues mentioned above, the public security organ stated in its “Record of Surrender/Arrest” that the defendant had been apprehended and brought into custody. However, the court’s investigation during the trial revealed that the defendant was neither apprehended nor brought in pursuant to the written summons indicated in the summons document; rather, the defendant had turned himself in upon receiving a telephone notification. In light of this, the court, based on an application submitted by the defense counsel, requested the procuratorial authorities to conduct a re-investigation and verification with the public security organ, and subsequently ruled that the defendant had voluntarily surrendered himself.