Study On Smuggling Crime Of Overseas Purchasing

As the development of trade formats.Smuggling is one of the ancient crimes which results from the emergence of the concept of state.In recent years,the purchasing power of domestic consumer has continued to rise,and various new forms of trade emerge as the times require,Among them,entrusted overseas purchasing has naturally entered the people's field of vision.Entrusted overseas purchasing is not an official legal concept,but an abstract vocabulary derived from the objective existence of social and economic development.Entrusted overseas purchasing relates to criminal law which as the most widely adjusted law and produces many problems,when have a negative impact on the interests of the state and social relations in some behavior.According to the purpose of overseas purchasing,it can be divided into profitable overseas purchasing and non profitable overseas purchasing;According to the way of commodity transportation,it can be divided into overseas purchasing on one's behalf"and "postal overseas purchasing".According to the purchasing organization,it can be divided into simple overseas purchasing and complex overseas purchasing.According to the purchase status of goods,it can be divided into futures based overseas purchasing in future and overseas purchasing in stock.Among them,the profitable overseas purchasing is the emphases for research because of its existence number and wide range of influence;overseas purchasing in stock,because it only has the appearance of purchasing,but not with the essence of purchasing,strictly speaking,should be included in the scope of sales relations.From the point of view of civil law,after purchasing agreement with the purchaser,purchasing agent buy specific goods according to the purchasing requirements,the nature of the act is agent of act in the civil legal relation,specificallyis principal-agent of act.From the perspective of the criminal law,the smuggling is the most typical legal crime or Administrative crime which is not like murder,arson and other crimes as its natural attribute.It originated from the regulation of law and developed with the formation of customs regime.Smuggling can be classified as crimes of smuggling specific objects and crimes of smuggling not specific objects.Among them,in overseas purchasing,smuggling crime generally exists in the crime of smuggling ordinary goods and articles.Concerning some problems about the overseas purchasing constituting the crime,firstly It can be classified into profitable purchasing and unprofitable purchasing.The literal distinction will directly lead to the emergence of this crime and other crimes,and also lead to great differences in the tax collection and administration system and the determination of tax rates.To distinguish between profitable purchasing and unprofitable purchasing,we must strictly follow the line that goods should be used for personal use with reasonable amount.Self use is a natural standard for distinguishing profitable purchasing from unprofitable purchasing,this means that it is unprofitable purchasing which is in accordance with their own personal requirements.The reasonable amount is to distinguish whether the goods need to be deal with according to the mode of profitable purchasing,that means it will be deal with according to the customs clearance requirements of unprofitable purchasing if they are in reasonable amount,and it will be deal with as profitable purchasing if they are not in reasonable amount.Secondly,it is about determination of the subject of criminal responsibility.There are also great differences about the subject responsibility due to the different ways of transportation and whether it is profitable.For example,the purchasing agent has no duty to declare or pay tax if he does unprofitable overseas purchasing by post,and he does not need to bear legal responsibility for smuggling under such circumstances.The purchasing agent violates the provisions that personal postal articles are limited to each other's gift for personal use,and shall bear the responsibility for the appropriate smuggling,If he does profitable overseas purchasing,Thirdly,it is about determination of subjective aspects.illegal consciousness is one of the elements of smuggling crime of entrusted overseas purchasing.the determination method includes determining and presumption of substantial,which is subject to the statutory presumption and reasonable limits,is not completely restricted by the law cited standards,nor take the infinite degree of presumption.Last but not least,it is the application of the criminal law's principle.According to the principle of legality ofcriminal law,in terms of the need for a blank or clear refinement cited other laws,through legislative authorization or entrustment legislation form,should be deemed to be in line with the basic principles of statutory crime;according to the doctrine of conflict,unless the revised criminal law itself caused by the new and old law,or not should be embodied in the revision of administrative regulations and rules and bring change.Some problems in the sentencing of overseas purchasing of smuggling,the priority of which is the determination of previous behaviors.The understanding of "criminal law" Article 153 paragraph 3 "untreated",has mainly the following three perspectives,"untreated" means it is without administrative processing,without criminal treatment,without administrative treatment and without criminal treatment.Have differed with the opinion of current judicial interpretation,I am inclined to support the view that "untreated" means without criminal treatment,according to "double jeopardy" principle,the provisions of the criminal law and the pursuit of criminal law enforcement effect.Next comes the determination of the specific amount.There are many difficulties in practice of the determination about the specific amount of entrusted overseas purchasing,It is difficult because of the validity of the tax payable,the computational complexity of the specific nuclear tax of the single subject and the electronic data evidence.To overcome such difficulties,we still need to strengthen the research in specific practice.For example,as investigating smuggling cases and determination of smuggling amount,Customs is not conducive to the objective case disposal;for instance,with the support of electronic data evidence,to further strengthen its effectiveness in the judicial practice of proof.The regulation of overseas purchasing crime can be analyzed from social economy and legal system.From the perspective of social economic activities,the main cause of overseas purchasing crime is the overseas purchasing market continues to be hot,the huge difference of goods and goods declaration model,and the drive of high tax interest.Then,it is the effective regulation method,that is how to promote the social people's basic cognition of overseas purchasing crime and improve the relevant supporting system of overseas purchasing.The former is containment,which encourages the public to exclude smuggled goods;the latter is to divert and satisfy the growing material needs of the public.From the perspective of legal system,on the one hand,it is the perfection of the administrative legal system.For example,clearly declare and tax obligations of the subject,explore the establishment of small traderegulatory reporting system,establish and improve declaration of personal goods and early declaration of knowledge and so on.On the other hand,it is the optimization of the criminal law system.We need to pay more attention to the application of economic punishment in smuggling crimes,and pay more attention to the harmfulness of repeated acts.