A Study On The Institutional Smuggling Crime

From the 20th century ,the smuggling criminality has become more and morerampant in the worldwide with the development of the world economy , theincreasing on international trade and facilities of communications . Nowadays, institutional smuggling crime has become serious because that thetarget of crime , the pattern of crime and the means of crime of the smugglingcrime have become more and more complicated while those have changed intointelligent, organizational and professional. In 1987, 《Customs Act》stipulated thatinstitutions are fit for the subject of crime for the first time ,while start the precedenton the rule of institutional crime .At the moment ,institutional smuggling crime hasbecome the focal point of the national smuggling crime . Nevertheless, the legislation and the judicial practice on institutional smugglingcrime has many aspects that need to be consummated, at the same time, some peoplehave several different standpoints and views in practice and in theory, such as thequestion of the subject of crime and the status crime , the problem of institutionalsmuggling joint crime, and so on. It would be more helpful to the protection of publicbenefit and to crack down on the institutional smuggling criminal activities toanalyze and solve these problems . The thesis consists of five parts to discuss these problems. The Chapter One is mainly about the general situation of the institutionalsmuggling crime. The author begins the discussion with the definition of theinstitutional smuggling crime. And then discuss the features of it. First, the feature ofthe subject of the institutional smuggling crime, that is ,. legitimacy, organic,independent. Second, the subjective feature of the institutional smuggling crime. Itcan't reflect the nature of the institutional smuggling crime to plot the illegal profitsand the essential factor of the institutional smuggling crime is not the aim to seekprofits, but is intention. Third, the objective feature of the institutional smugglingcrime. The criminality should has three factors as follows: the criminality is decidedby the policy making body of institution, or the persons in charge of the institutionthat the decision is from the institution; the criminality is implemented in the name ofthe institution ;the profit caused by the crime belongs to the institution. Fourth, theobject feature of the institutional smuggling crime. The institutional smuggling crimenot only damages the system of national foreign trade , but also encroach on thecustoms supervising activities on enter and leave the country ;but in the broad sense,it damages the order of the socialism market economy. The Chapter Two is mainly about the cognizance of the institutional smugglingcrime. The author begins the discussion with the cognizance of main body of theinstitutional smuggling crime. First, the partnership enterprise and the sole-investorenterprise can be the main body of the institutional smuggling crime? Thepartnership enterprise cannot be the main body of the institutional smuggling crime.Those sole-investor enterprises who have qualification of legal personality can be themain body of the institutional smuggling crime. Those sole-investor enterprises whohaven't qualification of legal personality cannot be the main body of the institutionalsmuggling crime. Second, the question is how to recognize the contractors'smuggling behavior in name of enterprise in course of contract. As to managementcontract, we commonly consider it is the institutional smuggling crime. As tonominal contract, we consider it is personal smuggling crime. Third, can enterpriseabroad be the main body of the institutional smuggling crime. Under the principle ofequity, we can consult the criminal legislation of institutional crime of foreigncountries, and went behind the criminal responsibility of foreign enterprise. Fourth,how to recognize when parents and subsidiaries participate in the smuggling crimetogether. Theoretically, subsidiaries have independent qualification of being ajuridical person. As long as it commi...