The crime of smuggling refers to an individual or unit intentionally violating customs regulations, evading customs supervision, transporting contraband for import or export or evading customs duties by various means, and the circumstances are serious. The specific charges include: smuggling weapons and ammunition; smuggling nuclear materials; smuggling counterfeit money; smuggling cultural relics; smuggling precious metals; smuggling precious animals and precious animal products; smuggling rare plants and rare plant products; smuggling obscene articles crime; the crime of smuggling ordinary goods and articles; the crime of smuggling waste.

    Among them, the crime of smuggling ordinary goods and articles refers to violating customs regulations, smuggling goods and articles other than those stipulated in Article 151, Article 152, and Article 347 of the Criminal Law, and the tax payable for evasion is relatively large, or the smuggling has occurred within one year. Smuggling after being given a second administrative penalty.

    This article mainly introduces the crime of smuggling ordinary goods and articles in the crime of smuggling.

    1. Object Elements

    The object violated by this crime is national foreign trade control. Its objects are except weapons, ammunition, counterfeit currency, cultural relics, gold, silver and other precious metals prohibited by the state from exporting, precious animals and their products, rare plants and their products, obscene articles, drugs, and solid waste that are prohibited from importing and exporting by the state. All other goods and articles. According to whether the country prohibits or restricts it, it can be divided into 3 situations:

    First, the goods and articles prohibited by the state from importing and exporting mainly include: printed matter, manuscripts, pictures, film, audio-visual products, software and other articles that are harmful to the country’s politics, economy, culture, or morality or whose contents involve state secrets; Animals, plants and their products containing dangerous germs, pests and other harmful organisms; instruments and medicines that are harmful to the health of humans and animals, and come from epidemic areas or other diseases that can spread diseases; Specimens) and seeds and reproductive materials; goods and articles infringing intellectual property rights; general animals and their products whose import and export is prohibited by the state; and so on.

    Second, the goods and articles whose import and export are restricted by the state, that is, the goods and articles whose import and export are subject to quota or license management by the state, such as cigarettes, alcohol, automobiles, motorcycles, televisions, refrigerators, calculators, and personal computers. , foreign currency and negotiable securities, communication security machines, radio transceivers, precious Chinese medicinal materials and their finished medicines, etc.

    Third, the state does not prohibit or restrict the import and export of goods and articles that should pay customs duties, such as clothing, concentrates, jellyfish, freshwater fish, shrimp, native products and other export articles; ceramics, plastics, cosmetics, glass products, Paper raw materials and other imported items.

    2. Objective requirements

    This crime is objectively manifested as violating customs regulations and evading customs supervision. Smuggling of goods and articles other than contraband such as guns and bullets into and out of the country, with serious circumstances. According to the specific ways of the crime of smuggling ordinary goods and articles, the crime of smuggling ordinary goods and articles can be divided into the following situations:

    1. Illegally transporting, carrying or mailing other goods and articles other than prohibited items such as weapons and ammunition into and out of the country.

    According to the revised provisions of this article, only illegally transporting, carrying or mailing weapons, ammunition, nuclear materials, counterfeit currency, precious animals and their products, precious metals, rare plants, obscene items and other prohibited goods and articles shall , only constitutes the crime of smuggling ordinary goods and articles.

    Ordinary goods and articles mainly refer to the goods and articles that are taxable and permitted to be imported and exported by the state. For such items, the state does not prohibit or restrict the import and export, but according to the needs of national economic development and social development, the demand must be properly adjusted by levying tariffs. Generally speaking, as long as it does not have a major impact on my country's national economy and people's livelihood, and does not have a major impact on my country's domestic economic development, such as my country's clothing, native products, foreign glass products, cosmetics, etc. can be freely imported and exported, but Customs duties must be paid in accordance with the law.

    2. Unauthorized sale of bonded goods, specific tax-reduced and exempted goods, donated imported goods and articles, and imported goods and articles under the guise of donation

    (1) Without the permission of the customs and without the payment of customs duties, the authorized import of raw materials, parts, finished products, equipment and other bonded goods for processing, assembly, compensation trade and other bonded goods that have been approved for import is sold domestically for profit.

    According to Article 57 of my country's "Customs Law", bonded goods refer to goods that have been approved by the customs and have entered China without going through tax payment procedures, but have been stored, processed and assembled in China and then shipped out of the country. Bonded goods do not pay customs duties when entering the country, so they cannot be circulated in the market like other domestic commodities. If the bonded goods cannot be re-shipped out of the country due to changes in objective conditions and need to be transferred to the domestic market, they must be approved by the customs in advance and pay customs duties. , if the perpetrator adopts concealment and deception to sell within the territory without permission, it is a smuggling act.

    (2) Without the permission of the customs and without paying the customs duties, the donated imported goods, articles or other specific duty-free goods and articles are sold domestically for profit.

    According to Article 40 of the "Customs Law", goods imported and exported from special areas such as special economic zones, goods imported and exported by specific enterprises such as Sino-foreign joint ventures, Sino-foreign cooperative enterprises, and foreign-funded enterprises, and imported and exported goods with specific purposes, are used for Donated materials for public welfare undertakings may be exempted from customs duties. The scope and methods of specific reduction or exemption shall be prescribed by the State Council. According to the above regulations, Article 9 of the General Administration of Customs approved by the State Council "Regulations on the Administration of Goods, Transport Vehicles, Luggage and Postal Items Entering and Exiting Special Economic Zones" and "Regulations on the Supervision and Taxation of Imported and Exported Goods by Sino-foreign Equity Joint Ventures" Article 4 makes specific provisions on the duty-free goods and articles imported by special economic zones and duty-free goods and articles imported by Sino-foreign joint ventures. In addition, the specific tax-reduced and exempted goods also include instruments and equipment that must be introduced by enterprises for technological transformation; certain equipment and equipment used by schools and scientific research institutions for teaching and scientific research.

    According to the "Customs Law" and other customs laws and regulations, certain exempted and exempted goods and articles can only be used in specific regions, specific enterprises or for specific purposes. Because the tax reduction or exemption of these goods and articles is a preferential policy given by the state to certain regions or units in order to promote economic development or other social development needs, the circulation and use of these goods and articles must be subject to certain restrictions. Arbitrarily letting it flow into the market, otherwise it means that any region or unit in the country can import goods through this channel with tax reduction or tax exemption, which will inevitably undermine the country’s foreign trade control and affect the country’s economic development. The duty-free goods and articles shall be punished as smuggling.

    3. Indirect smuggling of ordinary goods and articles

    Pursuant to the provisions of Article 155 of this Law, those who directly and illegally purchase and smuggle imported general goods and articles from smugglers with a relatively large amount, or other prohibited goods and articles other than the goods and articles whose entry and exit are restricted by the state are transported, purchased or sold in the inland sea or territorial sea. If the amount is relatively large and there is no legal certificate, as well as forgery or sale of customs documents and import and export licenses for smuggling general goods and articles, the crime of smuggling general goods and articles shall be punished.

    This kind of indirect smuggling can also be called quasi-smuggling or implicated smuggling, because the subject of this type of behavior is not directly engaged in smuggling activities, but its behavior is closely related to smugglers, and some actors are even related to smuggling. A tacit understanding was reached between the molecules. Due to the existence of these acts, the smuggled goods and articles can be quickly sold and spread, and the purpose of the smugglers can be realized. Therefore, such acts, like smuggling acts, cause damage to the country's foreign trade control. , Article crime.

    Among the above behaviors, "direct purchase from smugglers" refers to knowing that the other party is a smuggler, and directly purchasing smuggled goods and articles from them: "without legal proof" means that it does not comply with my country's import and export license system. According to the laws of our country, import and export commodities generally must obtain import and export licenses from the state-designated agencies, but the units approved by the state that have the right to operate import and export business can enter and exit the country with import and export documents within their approved business scope. If there is neither a "license" nor a "document", it means that there is no legal proof, and the behavior of the perpetrator constitutes smuggling: "Customs document" refers to the special document for declaration to the customs when importing and exporting goods and articles. Such as tax declarations, etc.: "Import and export license" refers to the certificate issued by the state foreign trade management authority to allow the import or export of goods and articles.

    The above-mentioned smuggling acts must be "serious" to constitute the crime of smuggling ordinary goods and articles. The so-called "serious circumstances" generally should be based on the fact that the amount of tax payable for smuggled goods and articles evaded reaches a relatively large amount. According to the provisions of this article, smuggling of general goods and articles can be regarded as a relatively large amount if the price reaches more than 50,000 yuan. In addition, armed cover for smuggling, resistance to anti-smuggling by means of violence and threats can be directly regarded as "serious circumstances" and it is determined that it constitutes the crime of smuggling ordinary goods and articles.

    3. Main Elements

    The main elements of this crime are general subjects, that is, a natural person who has reached the age of criminal responsibility and has the capacity for criminal responsibility can constitute this crime. According to the provisions of paragraph 2 of this article, a unit can also become the subject of this crime.

    4. Subjective Elements

    The subjective aspect of this crime can only be constituted by intention, and negligence does not constitute this crime. And the purpose of this crime is to make profit.

    The distinction between sin and innocence

    The key to distinguish whether the behavior of the perpetrator constitutes the crime of smuggling ordinary goods and articles is whether the smuggled goods and articles evade the amount of customs duties payable for escaping more than 50,000 yuan. Those that do not reach this amount are only ordinary smuggling acts and do not constitute smuggling. crime. The difference between the crime of smuggling ordinary goods and articles and other smuggling crimes lies in the different objects of smuggling.

    2. Disguised smuggling

    This type of smuggling behavior is the follow-up smuggling behavior of bonded goods and specific tax-reduced or exempted goods and articles, mainly refers to the unauthorized processing of imported materials and raw materials and parts for compensation trade without the permission of the customs without paying the due tax amount. , finished products, equipment and other bonded goods, as well as specific tax-reduced and duty-free imported goods and articles, which are sold domestically for profit. In the determination of the amount, this type of smuggling must only constitute a crime when the amount of tax payable to evade exceeds 50,000 yuan.

    3. Indirect smuggling

    In legal theory, it is also called quasi-smuggling, which mainly includes: firstly, the illegal purchase of goods prohibited by the state from importing and exporting directly from the smugglers, or the illegal purchase of other goods and articles for import and export directly from the smugglers, and the amount is relatively large; Transporting, purchasing or selling items prohibited by the state from importing and exporting in inland seas, territorial waters, river boundaries, and boundary lakes, or transporting, purchasing or selling goods or items whose import or export is restricted by the state, the amount is relatively large and there is no legal proof. Indirect smuggling According to Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Smuggling Cases, the "direct smuggler's illegal acquisition of smuggled goods" here refers to the illegal acquisition of smuggled goods from the smuggler knowing that he is a smuggler. For smuggled goods, the crime determined depends on the specific goods purchased. If it is general goods or goods, the crime of smuggling general goods and goods shall be determined; if it is special goods, the crime of other special smuggling crimes shall be determined.

    4. Other issues

    According to the provisions of Article 157 of the Criminal Law, in the course of a smuggling crime, if there is armed cover for the smuggling act, he shall be given a heavier punishment in accordance with the provisions of the smuggling crime; penalty. In addition, according to Paragraph 2 of Article 347 of the Criminal Law, if in the process of drug smuggling, a person who resists anti-smuggling inspection, detention or arrest with violence will not be punished for several crimes, but will be directly punished for the crime of drug smuggling.