A Study Of Customs Anti-smuggling And Penalty From A Perspective Of Implementation Of The Constitution

The constitution is a fundamental law of the country, which shouldbecome the code of conduct constraining all the subjects of constitutionalrelations. The various departments of the national administrative organsdirectly control the huge public resources and directly affect the guarantee ofthe citizen’s basic right daily and hourly. Therefore, it is of very importantsignificance for legal China to apply the constitution to each department ofthe national administrative organs. And the law circle should increase theresearch investment of this respect.The most important body for implementation of our state constitution isthe National People’s Congress and its Standing Committee. Our country’shighest organ of state power is the most important body for implementationof the constitution merely in the sense of the constitutional direct application.In respect to the constitutional indirect application, however, the fundamentalbody for implementation of the constitution is the state administrative organsother than the organs of the state power. As establishment of laws must be based on constitution in any country of constitutionalism, the stateadministrative organs are the initial implementers of laws in any legal systemcountry. In our country with a strict legislative system, the administrativeorgans play a leading role in the enforcement of the country’s laws as anational initiative and other rules and regulations in different manners, whichdetermines, to a great extent, how the constitution is implemented. But it isby no means that the enforcement of laws is the implementation of theconstitution. The administrations control or use a giant mechanism andmanpower and material resources which are necessary for indirectimplementation of the constitution. It is easy to violate the fundamental rightsof citizens and deviate from the mechanism of the state power if they do notfunction properly.The state administrative organs exercise the constitutional functions andpowers indirectly in all fields of social life and their constituent departmentsturn them into concrete action. Therefore, these departments are theelemental units for the indirect implementation of the constitution. Theconstitutionality of the legal regulations and rules and their enforcementprocess and the validity of their implementation of the constitutionalprinciple and spirit are of vital importance to overall and effectiveimplementation of the constitutionCustoms is a department of special and typical significance subject tothe state administrative organs. The dissertation gives an interpretation thatan administrative department should and may play its functions in theindirect implementation of the constitution through its practice andperformance in anti-smuggling. And it also gives an analysis of the must functions and existing situation of customs in the direct implementation ofthe constitution by its penalty for smuggling.The customs anti-smuggling system of punishment is the concretereflection of constitutional reality and the implementation of constitutionalprincipled provisions. Its operation process includes the content of theconstitution, spirit and principle and rules of the constitution, and the relatedterms are legal boundary settings performed by specific departments (ChapterOne).Chapter Two seeks from the historical source the base on which thecustoms anti-smuggling system of punishment developed. The purpose is tofind out the impetus for determining the development direction of this systemand the source of the particularity, and to understand the relationship betweencustoms anti-smuggling and national development. An establishment ofcustoms anti-smuggling organizations and their performance should followthe principle and spirit of the current constitution.From Chapter Three, the thesis has a study of customs anti-smugglingpunishment mechanism, which has an evaluation of constitutionality. Thethesis also proposes three key criteria for appraisal of the performance of theconstitutional functions, i.e. the guarantee or accomplishment of thefundamental rights of citizens stipulated by the constitution, theimplementation of the constitution for comprehensive scheme of the statepower and the maintenance of the legal demarcation line between thefundamental rights of citizens and public power of the state. The exercise ofthe customs anti-smuggling investigation power (Chapter Three) and theperfection of customs anti-smuggling administrative laws (Chapter Four) payattention to the balance between public power and private rights protection in the view of legal study, which is a matter about the relationship between thecountry and individuals. On one hand, we should pay attention to theoperation principle and mechanism of the customs anti-smugglingpunishment system, to identify their special and unique characteristics, tounderstand the gist of the punitive system originality and to comprehendlawmakers to endow an administrative organ with such special and strongjurisdictions, but on the other hand, we should be clear that its particularity isby no means an exception of the state laws. Legislation and judicature play arole in its legal control. Respect and guarantee of citizens’ basic rightsbecome the standard for measure of indirect implementation of theconstitution.Chapter Five discusses criminal legal system in anti-smugglingpunishment. Though it plays a leading role in the criminal investigation, it isrestricted by the people’s procuratorate and court during the operationprocess. And it also affects the work performance for examination,prosecution and trial of cases. The study of the criminal legal system ofcustoms anti-smuggling punishment from a perspective of implementation ofthe constitution focuses not on how the criminal law and criminal litigationlaw are implemented, but on whether these laws per se and theirimplementation process follow the relevant provisions and spirit of theconstitution closely, including those of safeguard of citizens’ basic rights.The enforcement of the punishment system of customs anti-smuggling relieson the enforcement of both criminal law and administrative law. We shouldgrasp the criteria for criminal registration with combination of the twofunctions of law enforcement and the rules for coordination andtransformation of the two types of law enforcement process. The boundary of the law enforcement space is the boundary to limit citizens’ basic rights.Therefore the exercise of public power must be interpreted and regulatedwithin the constitutional and legal framework (Chapter Six).The principle that all power belongs to the people confirmed by ourconstitution, the principle of the rule of law, the principle of respecting andprotecting human rights, the principle of restricting each other among thecourt, procuratorate and bureau of public security and the rule that the courtexercises judicial authority independently are all aimed at strengthening theprotection of citizens’ basic rights. In the light of the rule and spirit of theconstitution, the thesis not only evaluates the relevant normative documentsof law and the specific performance of implementation of the above laws inthe customs anti-smuggling punishment by the state organs or departments,but also proposes suggestions for improvement and reform of the relevantlaws.The author believes that all of the principles and measures applied in thecustoms anti-smuggling are applicable to a rational interpretation of therelationship between the indirect implementation of the constitution and thecivil service, and to a great extent, of the relationship between the indirectimplementation of the constitution and the military leading organs, judicialorgans and procuratorial organs as well.