Crime Of Smuggling Identified Difficult Problems

There is no final triumph for the campaign of cracking down upon smuggling. As long as price differences at home and abroad and trade control exist, hunger for exorbitant profits will lead smugglers to make a reckless move. In addition, under high-handed situations in which smuggling is being ruthlessly cracked down upon, smugglers will become more cunning, smuggling activities will become more covert, smuggling patterns will become more complex and new situations and problems will arise in the judicial practice of cracking down upon smuggling. All these situations and problems urgently need solving. In order to write this paper, the author has adequately collected, made in-depth study of and earnestly concluded literature on smuggling-related crimes and done analyses and researches into several knotty problems in practice on that basis and in combination with work experience in cracking down upon smuggling. The main contents are as follows:Part One briefly summarizes the general ideas of China's smuggling-related criminal theory, including criminal jurisprudential circles'opinions on the offense of smuggling as well as customs circles'opinions'on the issues related to smuggling.Part Two is about the understanding and the determination of several constitutive requirements in the offense of smuggling and is divided into three sections. The first section expounds on the determination of several specific smuggling activities mainly including clearance smuggling activities, subsequent smuggling activities and marine smuggling activities. The second section expounds on several issues on determining unit crimes including the case that it mainly depends on whether the changed unit intent is continuous when the members of the unit have completely changed; judging whether general clerks'intent represents the unit intent depends on their positions, powers, if they act in the name of the unit or not and if their benefit vests in the unit or not, etc; the unit offense of smuggling committed by affiliated companies is supposed to be judged in combination with persons in charge and according to the fact whether benefit ownership is identical; unit smuggling-related crimes and individual smuggling-related delinquency are supposed to be imposed on combined punishment for several offenses; the second section discusses several issues on determining joint offenses of smuggling:ascertaining criminal responsibility of forwarders in the joint crimes of marine smuggling and formulating more disposal opinions on those who repeatedly participate in smuggling general freight and articles and are not involved in collusion; when units and individuals jointly smuggle general freight and articles and principal criminals and accessory criminals cannot be determined, their crimes are supposed to be determined leniently rather than according to the criteria; combined punishment for several offenses is not always supposed to be imposed on customs officers who take bribes and indulge smuggling activities; the third section discusses several issues on determining subject intent, including how to distinguish between direct intent and indirect intent in the offense of smuggling; how to determine general intent in smuggling and it is not advisable to expand general intent into the category of cognitive mistakes inappropriately; determining deliberate violation of the offense of smuggling.Part Three is the explanation and understanding of several legal norms, mainly including the discussion about the new issues of "the offense of smuggling freight and articles which the nation prohibit from being imported and exported" in AmendmentⅦto the Criminal Law; how to correctly understand and execute the provisions on the export and smuggling of cultural relics which arouses literal controversy in Legal Interpretation No.30; how to understand and apply Article 24 of Criminal Law, which is enacted against "armed" smuggling and violent resistance to anti-smuggling action in judicial practice.Part Four puts forward several legislative proposals on perfecting the offense of smuggling, mainly including putting forward legislative proposals on effectively punishing minor but repeated smuggling activities, advising amending Item 3 of Article 153 and laying stress on not having been put on file for criminal investigation; putting forward legislative proposals on effectively punishing marine smuggling and advising combing the provisions in Item 1 of Article 55 of Criminal Law of People's Republic of China with the provisions in Article 83 of Customs Law of People's Republic of China; raising legislative proposals to effectively punish unit crimes and adding punishment against qualification that fits unit crimes according to the features of unit crimes; advise changing the offense of smuggling general freight into the unity of criminals whose penalty is measured by the amount of tax evasion and criminals whose penalty is measured by proportions of tax evasion amounts to freight value; advising separately adding several charges in the criminal law according to the current anti-smuggling situations.