Research On The Judicial Determination Of The Crime Of False Entrepot Trade Evasion Crime

Re-export trade refers to the type of trade which does not occur directly between the producing country and the purchasing country,but transited through a third country.Generally speaking,re-export traders use the asymmetry of information between buyers and sellers,buying and selling to earn the difference.In the current context of the Sino-US trade war,re-export trade has become an important strategy for enterprises to avoid high tariffs.It is worth noting that,based on the characteristics of re-export trades,some companies have speculative ideas: using false trade documents（such as ocean bills of lading,customs clearance documents,etc.）to borrow or purchase a large amount of foreign exchange from banks while re-export trades do not really exist,and these foreign exchanges were remitted abroad through these re-export trades.Their associated overseas companies eventually repatriate foreign exchange,just earning interest margin or foreign exchange rate difference through time difference of the entire transaction process.In response,the foreign exchange management department usually determines that kind of transaction as act of evading foreign exchange in accordance with relevant administrative regulations,and generally imposes administrative penalties such as fines.If the amount of foreign exchange evasion is greater than a certain standard,the foreign exchange management department will refer the case to the public security organ for further investigation.For cases in which the evidence is indeed sufficient,they may be sentenced to evasion of foreign exchange control.The focus of this paper is whether the evasion by the perpetrators in the above-mentioned false re-export trade-type foreign exchange evasion cases constitutes the evasion of foreign exchange control.This paper is mainly organized by the elements of crime,divided into four chapters.The first chapter is a summary of evasion of foreign exchange control,introducing the model of re-export trade by making up false trade background.The author mainly focuses on the criminal law provisions and related judicial interpretations of evasion of foreign exchange control,also introduces the relevant provisions of the foreign exchange evasion behavior in the foreign exchange management system.In addition,considering the practical characteristics of this paper,the author has introduced the merits of a case of foreign exchange evasion that has been handled as the main line through the paper to facilitate subsequent discussions.From the beginning of Chapter Two,the author discusses on the issues of the crime subject,the subjectivity of the crime and the objectiveness of the crime,with the frame of comprehensive perspective and judicial practice--proposing a problem--solving the problem.The discussion of Chapter Two is about the crime subject of evading foreign exchange.This chapter is divided into three sections.In the first section the author introduces the theories of crime subject and the adjudicative practice of crime subject determination.In the second section the author takes the specific case as the starting point.,raising questions about the application of the subject’s constituent elements in judicial practice,mainly focused on whether individual industrial and commercial households can be the subject of this crime,and whether the reputed legal representative should bear criminal responsibility.In the third section,the author gives his own opinion on the above issues that a natural person should be regarded as a eligible subject of evasion of foreign exchange control,and whether a reputed legal representative has to bear criminal responsibility depends on the intensity of the engagement of evading foreign exchange.The discussion of Chapter Three is about the subjective elements of evasion of foreign exchange control,which is also divided into three sections.In the first section the author introduces the theories of subjective composition of crimes and relevant adjudicative practice;Then the author questions about the subjective constituent elements in judicial practice,including how should the consciousness factor in the intentional crime be determined,and whether the illegal knowledge of the perpetrator should affect the determination of his legal liability.In the third section,the author puts forward the standard of the "knowledge" as consciousness factor in the evasion of foreign exchange control in combination with the case.Also,it is suggested that the judiciary should consider the cognizance of illegality in determining the perpetrator ’s liability.The discussion of Chapter Four is mainly about the objective elements of the crime.The structure and organization is similar to the previous two chapters.In the first section the author gives an interview of the objective elements of financial crimes and evasion of foreign exchange control.In the second section,the author mainly raises questions about whether the evasion of foreign exchange control is behavioral offense or result crime,the objective determination of false trade background,and the counting of crime amounts.In the third section,the author puts forward the view that evasion of foreign exchange control is a consequential offense,and the counting of crime amounts should be adjusted to the net outflow of foreign exchange in the whole process of re-export trade.Combining judicial practice and the law enforcement standards of the foreign exchange management department,the author makes standardized suggestions on the identification of false trade background.