Study On Crime Of Smuggling Common Goods Or Articles After China's Entry Into The World Trade Organization

Smuggling is the product of the development of commodities and international trade to a certain stage.In order to protect their own economic interests,sovereign states need to supervise and control the goods and articles entering and leaving the country's borders,such as prohibiting and restricting import and export and imposing a certain percentage of import and export tariffs.Crime of smuggling common goods or articles punishes the act that people import and export of taxable goods and evade customs duties.The objects of smuggling do not involve goods or articles prohibited or restricted by the state from being exported or imported into China.The criminal offense of smuggling mainly focuses on the escaping of tariffs,so it is closely related to the adjustment of our tariffs.On December 11,2001,our country officially became a member of the World Trade Organization(hereinafter referred to as the “WTO”).After China's accession to the WTO,our country actively fulfilled its treaty obligations such as tax reduction and exemption,but it also inevitably resulted in the conflict between the domestic law and the WTO law.This led to some controversy over whether to apply the WTO law on the cognizance of crime of smuggling common goods or articles.Typical,the identification of smuggling of rare earth,tungsten,molybdenum and other products.In particular,China has formally canceledthe export tariffs on rare earth,tungsten,molybdenum and other products on May 1,2015 in accordance with WTO requirements after losing the WTO dispute settlement body.It is worthwhile for us to make further research on whether the behavior of the export of rare earth,tungsten and molybdenum products to avoid customs duties before the tariff cancellation is applicable to the criminal law retroactivity.The first chapter mainly introduces smuggling crime and crime of smuggling common goods or articles,including the concepts of the two and the provisions in our criminal law.Crime of smuggling common goods or articles is closely related to China's tariff system.The main bases for forming a crime are whether it violates customs laws and regulations and evades customs supervision,and smuggled objects should be common taxable goods.Only to a certain degree of tax evasion is a crime.The content of the second chapter is as follows: after China's accession to the WTO,the domestic law on rare earth products and other tariff provisions is in conflict with the WTO law.Whether the judiciary in our country can directly apply the WTO law in determining the related tax-smuggling and found that the perpetrator is innocent.At present,although our country applies WTO law indirectly,our country has already made it clear that when domestic laws and regulations are not in place within the time limit,we will still keep promise to WTO and the WTO Dispute Settlement Body ruled that our country levied on tariffs on products such as rare earth is a violation of WTO obligations.Therefore,in accordance with the principle that the“treaty must be observed”,when the domestic law conflicts with the WTO law,the courts should give priority to WTO law.And because the “Customs Law” is more effective than other tax regulations,even if the domestic “Import and Export Tariff”and other tax regulations do not list products such as rare earth as duty-free goods or articles,they should also exempt export tariffs on products such as rare earth according to the “Customs Law” to give priority to fulfill WTO treaty obligations.Thus,in the case of direct application of the WTO law,it is impossible to constitute crime of smuggling common goods or articles.The third chapter starts from the change of the adjusted export tariff.When the courts only handle tax-related smuggling cases on the basis of domestic laws,and theexport tariffs on related products have been canceled at the time of the judgment,whether courts should apply the retrospective provisions of criminal law on smuggling crimes committed prior to the abolition of tariffs.This part mainly focuses on the retroactivity of criminal law.It should be considered that under the premise of smuggling crimes as legal guilty,the setting of blank crimes in the criminal law makes the pre-existing laws and regulations form a supplement to them.When the criminal law itself does not change,the changes of provisions of the supplementary norms of evaluation should also be regarded as changes in criminal law.Therefore,when there is a change of “yes” or “no” in the tariff rate,the retroactive provisions of criminal law should be applied.