Research On The Legislation Of Crime Of Smuggling

With China's development of open reform and entering into WTO, foreign trade system and trade administration measures have changed much. While legislation on crime of smuggle comparatively and apparently lags behind the times which results in some of criminals avoiding punishment of law. On the other hand, it comes out of new methods and new problems on the crime of smuggle which makes it hard to process in the judicial practice. In order to protect our country's economic order and social security, promote the development of economy and enhance the effect of anti-smuggle, it is important to research on the defects of legislation and amendment of legislation on crime of smuggle.This article gives a picture on the legislation status and the reasons of the legislative defects. Firstly, it explains the legislative proceeds and theory research on smuggle and our legislative status on smuggle in our current Penal Code. From the legislative perspective, the Penal Code defines the name of specific smuggle according to the kinds of goods other than smuggle methods and process. According to the nature of goods of smuggle, it is divides into two categories: tax evasion and trade administration evasion. Smuggle of common goods and articles is to smuggle the goods and articles which can import/export freely, restrictedly or are prohibited to import/export but not listed in the Penal Code in order to evade taxation. Smuggle of weapon/ammunition is to smuggle the goods and articles listed in the Penal Code as prohibited to import/export in order to evade certificate, that is, to evade trade administration measures with the nature of prohibition. This article, in the mid part, summarizes the previous research fruit on smuggle. It can be divided into the several parts as follows: first, Research on Arrangement of Order: in the Penal Code (1997),"Crime of Smuggle"is listed as a single section in the third Chapter Crime of Demolishing of Market Economic Order of Socialism which makes crime of smuggle becoming a category name including several specific sub-names of crime. Such arrangement shows the theory of classifying standard according to criminal object. While smuggle of drugs and smuggle of drug-making goods are listed, along with crime of selling, transporting and making drugs, in Section 7 in the Chapter titled Crime of Hampering of Social Management Order. For such arrangement of order, the props think that smuggle of drug is to infringe our country's administration on drug and results in harm on social security order and citizens'health, therefore, putting it in Crime of Hampering of Social Management Order meets the theory of crime category and makes the Penal Code more scientific in the structure. The opponents think that the legislative method of category standard based on crime object is scientific and correct and should be carried out thoroughly. Second, Research on Punishment Setting. Some scholars point out: the criminal object of smuggle of solid rubbish is special object and therefore should be treated as smuggle of special goods; since such case does not provided in the Penal Code, it has to be punished according to smuggle of common goods/articles listed in Clause 153 in the Penal Code; while in the case of smuggle of dangerous or prohibited solid rubbish, it has nothing with taxation and no punishment can be imposed on the doer. So, in fact, smuggle of solid rubbish is a crime without legal punishment and according to the principle"no punishment no crime", smuggle of solid rubbish does not exist accordingly. Third, Research on Punishment without Name of Crime. Sub-clause 1, Clause 157 in the Penal Code stipulates that smuggling safeguarded by arms should be punished heavily pursuant to Sub-clause 1, 4, Clause 151. As to how to specify the name of crime and how to understand this clause, there are two opinions in the academe: one opinion thinks that smuggle safeguarded by arms, no matter the smuggling behavior safeguarded constitutes crime of smuggle or not, and no matter what goods are smuggled, should be punished heavily pursuant to smuggle of weapon/ammunition/nuclear material; the other opinion thinks that smuggle safeguarded by arms should be treated as a single crime and if it is punished pursuant to smuggle of weapon/ammunition/nuclear material, the situation will be embarrassing.In the following part, this article analyzes some apparent defects and shortcomings in legislation on crime of smuggle from the practice perspective. The Penal Code has some problems in legislative system and order: it is not reasonable on stipulation of smuggle safeguarded by arms; it is hard to specify crime or non-crime and light or heavy of punishment, it is not in harmony between smuggle and other crime, between specific crimes of smuggle, between criminals and between punishments. We can get these conclusions from the following situations: in the aspect of general smuggle, the stipulation on smuggle of precious metal does not lie to trade administration; in the aspect of smuggle safeguarded by arms, the stipulation is not reasonable and it is hard to specify the number of crime, name of crime and punishment; it is not favorable to defeat the smuggle behavior of"evading certificate but not tax"if we punish the smuggle of restricted and prohibited goods/articles not listed according to the amount of tax evasion; in the aspect of following-up smuggle, the coverage of following-up smuggle is too narrow and it is easy for the doer to evade; in the aspect of quasi-smuggle, the clause of quasi-smuggle and clause of general smuggle have not linked up perfectly; in the aspect of punishment, we have not reached on whether the goods/articles smuggled should be forfeited and how to define goods and articles; In case of two or more names of crime can be imposed, both the principles"choosing and punishing the heavy one"and"punishing jointly"are used in the judicial practices; in the aspect of smuggle from waterway, we have not stipulation on such crime; finally, the use and expression of terms of smuggle is not scientific and causes many troubles in practices.At the end of this article, with regard to the defects in the legislation of crime of smuggle, the writer analyzes how to perfect the legislative principle on crime of smuggle and propose to perfect the legislation on crime of smuggle from 6 aspects in the form of amendment or judicial explanation: smuggle of common goods/articles should treat"amount of taxation evaded"as the single crime constitution standard, enlarge the scope of following up crime of smuggle, and lower the starting line of amount of taxation evaded; smuggle safeguarded by arms should be punished heavily pursuant to the name of crime committed; adding crime of smuggle of other prohibited goods the name of crime should be specified according to the nature of smuggle object; amount of punishment on unit should be specified; it should stipulate forfeiture of smuggling goods/articles and the scope of forfeiture.