Analysis To The Difficult Problems Of Illegal Cross National Border

The legislation of our country on the crime of illegally crossing the border is relatively simple,there are many controversial issues in judicial practice.Although Lianggao issued relevant judicial interpretations in 2012,the actual problems have not been completely solved,and the provisions themselves lack a clear scope,which leads to inconsistent identification standards and impedes the rigor of the law and judicial fairness.The current theory and practice of this crime research is still less.Therefore,the author discussed some difficult problems in judicial practice on the crime of crossing the national border(frontier)sin combined with personal experience in Exit and Entry department through many typical and difficult cases in order to effectively combat border(frontier)crimes and provide some valuable reference to judicial practice.The paper is divided into three parts as follows:The first part is an overview of the crime of crossing the national border illegally,including the legislative amendments and judicial disputes.Among them,the earliest provisions of the crime were elaborated in Article 176 of the criminal law in 1979,also amendments of the criminal law of supplementary provisions on severe penalties for crimes of punishing organizations,and illegally delivering others to cross the national border(frontier)in 1994,system modifications modify in Article 322 of the criminal law in 1997,comprehensive modifications in Article 40 in criminal law amendment(9).Among them,the judicial disputes mainly discuss the inappropriateness of the crime of crossing the border(frontier)illegally.The second part discusses the difficult problems of "illegal crossing" and “other serious circumstances” in the crime of crossing the national border(frontier)illegally.Through the definition of “ illegally crossing”,an dit further clarifies crossing the national border(frontier)illegally without exit and entry certificates and evade the frontier inspection and illegally cross the national border(frontier),the use of forged or altered exit and entry certificates or falsely using exit and entry certificates of others to cross the national border(frontier)illegally,holding with exit and entry certificates through deception to cross the national border(frontier)illegally and through four types and essences of crossing behaviors of “detour” to cross the national border(frontier)illegally.Besides,on the basis of illustrating six “serious” circumstances in this paper,and it discusses the ambiguity of “other serious circumstances” in bottom,analyzes and clearly demonstrates five “other serious circumstances”,including the use of public officials to carry out the behavior of crossing the border(frontier),bad methods of crossing the national border(frontier)illegally,serious impact on crossing the national border(frontier)illegally,and crossing the national border(frontier)illegally occurred during the war,or war zone and pointing to hostile countries or regions.The third part discusses the difficult problems of crime patterns,accomplices and the crime quantity.Among them,difficult problem of criminal patterns mainly discussed the difference between accomplished and attempted crimes,illustrated that the precondition is to clarify the difference between behavior crime and act crime,and clearly pointed out and proved that crossing the national border(frontier)illegally should be behavior crimes,at the same time with the help of practical cases,it shows the boundaries of the accomplished and attempted crimes.In the difficult part of accomplice,it mainly discusses whether is an accomplice or not of assisting others to cross the national border(border)illegally.Through the analysis of cases,it illustrates that if the assistance is confirmed to have the nature of transportation,it cannot be identified as an accomplice,but it can be identified as the crime of delivering others to cross the national border(frontier)illegally.If the act of assistance does not have the nature of transportation,but merely teaches the smuggler some methods and skills,provides funds or supplies food and other convenient conditions,then it should be identified as the accomplice of the crime of crossing the national border(frontier).Third,the difficult problem of crime quantity clarifies the subjective and objective intention to determine the illegal behaviors,and correctly distinguishes the identification of various charges,so as to clarify the illegal behavior of crime quantity.