Keywords: smuggling crime, smuggling intentional, not guilty
Author:
Lawyer Li Zemin: Executive Director of Guangqiang Law Firm; Director of the Center for Economic Defense; Lead defense counsel in pyramid scheme cases
Wu Dan: Researcher of the Economic Defense Center of Guangqiang Law Firm
In criminal cases, most crimes are committed intentionally, what is intentional?
That is, the perpetrator clearly knows that his or her conduct may bring about harmful results, but still hopes or allows the harmful results to occur.
Criminal cases of smuggling are also typical intentional crimes, which are manifested in the fact that the parties clearly know that their actions violate the laws and regulations of the national customs, but still evade customs supervision by concealing, concealing or disguising relevant goods and articles, so as to achieve the result of evading the amount of tax payable or evading the state's prohibitive entry and exit management system.
So, how to determine that the party has the subjective intent to smuggle?
The key to the judgment of the case-handling organ is whether it is "knowingly", that is, whether the party knows or should know that the act engaged in is smuggling. However, "knowing" is a kind of mental activity that cannot be grasped directly and accurately. In judicial practice, case-handling organs often rely on the objective behavior of a party to infer whether it is "knowingly".
In other words, if it can be proved through the conduct of the parties involved in the case that they did not know, should not have known, or could not have known that they were engaged in smuggling activities, can the subjective constitutive elements of the crime of smuggling be excluded, and then prove that the crime is not established?
Let's first look at a case of innocence involving smuggling by the Guangzhou Intermediate People's Court (2007 Sui Zhong Fa Xing Duo Zhong Zi No. 2).
Brief facts of the case:
Defendant L is the person in charge of the office of Company X in City N, and the business scope of Company X includes the import and export, processing trade and compensation trade of non-ferrous metals.
Under the arrangement of Company X, L entrusted Company G to declare 499 tons of aluminum ingots under the import business contract to the customs with the "Import Processing Registration Manual", and the consignee and producer of the batch of bonded aluminum ingots were both Company X. Later, L sold the batch of imported aluminum ingots to a number of domestic aluminum factories and individuals. After the incident, L was detained by the X City Public Security Bureau and transferred to the H Anti-Smuggling Bureau for processing.
The public prosecution held that L had entrusted him with a false processing registration manual to handle customs clearance procedures and sold bonded goods without permission, so he was charged with the crime of smuggling ordinary goods.
Controversy Analysis:
Obviously, there are at least two doubts in this case: first, whether L knew that the contract processing registration manual of Company X was false? Second, who arranged for L to sell the aluminum ingots involved in the case?
From the perspective of business scope, Company X has the legal qualifications to import and sell the aluminum ingots involved in the case; According to the business contract, Company X was also the consignee and producer of the batch of aluminum ingots. According to the Customs Law, the consignee and consignor of import and export goods are the declaration obligor, and the customs declaration enterprise or customs declarant must have relevant qualifications. Therefore, as the person in charge of the office under Company X, L is only responsible for the specific work of entrusting customs declaration and sales of goods under the company's decision-making, and he has neither the obligation to declare nor the duty of customs declaration. Based on his understanding of the company's business scope, L had no substantive obligation to review the authenticity of the processing registration manual involved in the case, and it was impossible to doubt the company's arrangement, so it could be determined that L did not have the possibility of knowing that the manual was false.
At the same time, in this case, only one person L was involved in the case, and the legal representative, general manager and other relevant personnel of Company X were not in the case, so although the fact that L was assigned to engage in smuggling was in line with common sense, it was controversial due to the lack of key evidence. Even so, according to the principle of doubt in favor of the defendant, it is appropriate to determine that L did not have the possibility of knowing whether the sale of the aluminum ingots involved in the case complied with customs regulations, and therefore did not have the subjective intent to smuggle.
Therefore, the evidence in this case did not form a complete chain of evidence, which was insufficient to prove that L entrusted customs declaration despite knowing that the commercial documents were false, nor could it rule out the possibility that L did not know that the sale of the goods involved in the case did not comply with customs regulations, so it could not be determined that L had subjective smuggling intent.
Judging from the judgment, the Guangzhou Intermediate People's Court in this case also upheld the same position:
The court held that L, as the person in charge of the subordinate office, was only the executor of Company X's decision-making, and his argument that the relevant personnel of the company had clearly stated that the customs declaration and sales work were carried out under the condition that the customs declaration materials were complete and the customs was permitted, and this defense was reasonable, so the public prosecution accused L of knowing that the aluminum ingots were bonded goods and sold them without the permission of the customs The evidence was insufficient, and finally decided to adopt the defense opinion and ruled that the defendant L was not guilty.
Similarly, in smuggling cases, it is not uncommon to obtain a verdict of acquittal by excluding the parties from having the intent to smuggle.
(2016) Yue Xing Zhong No. 221
Brief facts of the case:
Company L entered into a crew lease agreement with Company Z to hire 18 crew members to work on the ship, including defendant Y as captain, J as chief officer, and C as second officer. Later, the X steamer of L company was stopped and inspected by the anti-smuggling officers at S Customs, and it was found that the X ship was carrying 60 containers, all of which were frozen goods without legal certificates. After identification, a total of 1,807 tons of frozen products were involved, including 658 tons of frozen products from epidemic areas, 1,090 tons of frozen products from non-epidemic areas, and 59 tons of frozen products of unknown origin. The public prosecution charged Y, J, and C with the crime of smuggling goods and articles prohibited by the state from being imported or exported, and smuggling ordinary goods and articles.
Controversy Analysis:
In this case, the defendant's duty as an employee was to drive the ship rather than to make a customs declaration, and it was doubtful whether he knew or should have known that the goods he was carrying were suspected of being of a variety, specification or quantity prohibited by the state from being imported or exported.
In addition, this case has similarities with the first case, that is, neither the owner nor the agent of the goods involved in the case have been brought to the case. Therefore, even if there are contraband in the goods involved in the case, how can it be proved that the defendant conspired with the owner and agent of the goods in advance when the first person responsible for the smuggling activities is missing? If the defendant is directly determined to have the intent to smuggle just from the presence of smuggled goods on the ship piloted by the defendant, it is obviously an error of objective imputation.
Of course, the presiding court is consistent with the position of this article:
The court held that the facts of this case were unclear, the evidence was insufficient, the alleged crime could not be established, and Y, J, and C did not constitute a crime for the following reasons:
(1) The available evidence is insufficient to determine that defendants Y, J, and C had the criminal intent to smuggle. Defendant Y, as the captain, and J and C, as crew members, were all legally recruited to work on the X ship, received a fixed salary, and drove and managed the ship according to the instructions. Defendants Y, J and C were not the owners of the goods, so they did not have the duty to declare the import and export of goods and the obligation to ensure the quality of the goods, nor did they illegally profit from the smuggling in this case. Therefore, the evidence alleged by the prosecution does not prove that the above-mentioned defendants conspiracy with the smugglers. Although defendants Y, J, and C did not cooperate with the inspection in a timely manner and their behavior was suspicious, the evidence in the case was insufficient to determine that the defendants had the criminal intent to smuggle.
(2) In this case, the ship X was caught on the normal route, but the owner and agent of the cargo did not appear in the case, and the destination and ownership of the cargo could not be confirmed, and the available evidence could not prove that the destination of the seized goods and articles was in the mainland of the mainland, or that they were smuggled into the mainland of the mainland from the established route, nor could it be proved that the defendants Y, J, and C had committed objective acts of smuggling together with others, and reasonable doubt could not be eliminated.
(2016) Yun Xing Zhong No. 1539
Brief facts of the case:
Defendants L (captain) and S (first mate) drove the cargo ship "J" to port G in China after loading cargo at Q Terminal in Thailand, and there was no waybill for the 9 boxes of goods carried by others. Later, the cargo ship "J" entered the country at Port G in China and made an entry declaration to Customs X (the 9 boxes of cargo carried were not declared, and the 9 boxes of goods were placed in a conspicuous position on the cargo ship). When the customs inspector of X inspected the goods carried by the inbound cargo ship "J", he seized 2 ivory products with a net weight of 5,181 grams in the undeclared 9 boxes of goods on the spot; The net weight of seahorse products was 40,500 grams, a total of 11,936; The net weight of bird's nest is 16847 grams. The public prosecution charged defendants L and S with violating customs and wildlife protection laws and regulations, evading customs supervision, and transporting precious animal products into the country, all of which constituted the crime of smuggling precious animal products.
Controversy Analysis:
Judging from the facts of the case, there are also major doubts in this case, if the defendant had the intention of smuggling, then why did he not hide and disguise the nine boxes of goods involved in the case, but directly put them on the cargo ship for inspection by the customs? This is clearly counterintuitive.
At the same time, from the perspective of the Customs Law, the defendant's duty as the captain and chief officer is to ensure the safe arrival of the ship and the cargo, and although it has certain management obligations for the cargo, its duties determine that the defendant does not have the obligation to declare. Therefore, it is impossible to expect that the defendant knew or should have known the specific contents of the nine boxes of goods involved in the case, so it should be determined that the defendant did not know that he was engaged in smuggling activities, and then it should be determined that the defendant did not have the intent to smuggle.
Judging from the reasons and results of the judgment, the court in this case also supported the defense of not guilty:
The court held that the facts of this case were unclear and the evidence was insufficient, and the evidence in the case could not prove that L and S had the criminal intent to smuggle; As the person in charge of the means of transport, the two did not strictly follow the system to handle the relevant procedures for the goods transported, failed to truthfully declare to the customs, and violated the relevant laws and regulations and job responsibilities, but their behavior did not constitute a crime and were not subject to criminal punishment for the following reasons:
(1) The evidence in the case proved that the two defendants were not the owners of the goods. The confessions of the two were stable, and they both said that they helped a Thai boss Z bring 9 boxes of handicrafts to Port G in China, and did not charge freight, and the domestic receiver was H and the owner of the goods was K. Although the evidence from Thailand cannot be verified, the relevant domestic evidence can corroborate each other, and according to the principle of no guilt in doubt, it should be determined that the two defendants are not the owners of the goods.
(2) The evidence in the case does not infer that the two defendants "knowingly" that the goods transported were precious animal products and had the intent to smuggle. The two defendants both admitted to helping the Thai boss bring 9 boxes of handicrafts, but the 9 boxes of goods were tightly packaged, there were no traces of dismantling and inspection, and they were placed in a conspicuous position on the ship, and there was no concealment, camouflage or other acts to evade customs supervision; At the same time, the cargo ship was within the declaration period when it was inspected, so the possibility that the two defendants were deceived cannot be ruled out, and it cannot be presumed that the two defendants knew that they were transporting ivory and seahorse products and did not prepare to declare customs, so it can be concluded that the two had the intention of smuggling.
(3) According to the Customs Law, the consignee and consignor of the import and export goods are the declaration obligor, and the customs declaration enterprise or customs declarant must have relevant qualifications, so the two people, as the captain and the chief officer, are not the obligors and responsible persons for the customs declaration of the goods.
(4) Although the two persons, as the captain and chief officer, have the responsibility to truthfully declare the goods transported, if it cannot be determined that the two persons have the intention to smuggle, the failure to truthfully declare the goods transported does not necessarily constitute the crime of smuggling.
epilogue
Whether or not there is criminal intent is one of the core elements in determining whether a party to a criminal case is guilty or not. Because it is difficult to directly and accurately grasp the subjective state of mind of the parties at the time of the occurrence of the case, in judicial practice, the case-handling organs often make inferences based on the objective behavior of the parties.
In smuggling cases, the criterion for judging whether a party has the intent to smuggle is whether the party is aware that he or she is engaged in smuggling. Therefore, from the perspective of defense, the defense lawyer should comprehensively sort out the evidence in the case and find out all the evidence that the parties did not know, should not know, or have the possibility of knowing the facts involved in the smuggling, so as to overturn the guilty verdict of the case-handling organ and strive for the result of innocence.
#走私犯罪##主观故意##无罪#