On Legal Problems About'the Amount Of Tax Evasion'of Article 153 Of The Criminal Law

The crime of smuggling common goods and articles means to breach the customs laws, evade the Customs'supervision and control, illegally transport, carry or send by post into or out of the territory the goods and articles which do not belong to weapons, ammunition, nuclear materials, counterfeit currency, or cultural relics, precious metals the export of which is forbidden by the State, or precious and rare species of wildlife, precious and rare species of plants as well as the products thereof the import and export of which are forbidden by the State, pornographic materials, waste material, drugs, or by other means, to evade the Customs'supervision and control to sell the bonded goods and duty-reduced or duty-exempted goods imported under special permission, evades or dodges payable duties to the legal amount. Article 153 of the Criminal Law of China prescribes that the offender of the crime of smuggling common goods or articles should be convicted and sentenced according to the amount of tax evasion. This provision made the amount of tax evasion become the basis of the conviction and sentence to the crime of smuggling common goods and articles instead of the value of the smuggled goods and articles. It should say that to convict and sentence the crime of smuggling goods and articles according to the amount of tax evasion can more clearly manifest the degree of harm done to society caused by the crime of smuggling common goods and articles, the oneness and justice of law enforcement. This change made the assessment of the amount of tax evasion be the judicial expertise in the criminal procedure, and the Customs be the statutory organ to assess the amount of tax evasion. To standardize the assessment, the General Administration of Customs formulated the Interim Procedures of the Assessment of tax evasion according to the Customs Law and other relevant laws and regulations.Through the several years judicial practice, we can see that it is necessary to convict and sentence the crime of smuggling common goods and articles by the amount of tax evasion, but it is not overall. It is difficult to handle the acts of smuggling the goods and articles prohibited by the state, the acts of evading-certificate-not duties, most of acts of smuggling goods and articles in export process, repetitious small scale smuggling acts punished by administrative law. On the other hand, there are still some defects in the work of assessment of tax evasion by the Customs as the judicial expertise organ, such as: the objectivity and facticity of the price of the smuggling goods and articles evaluated by the Customs, the application of the principle of beneficial-to-defendant in determining the kind of duty-rate by the Customs, the uncertainty of the criminal facts caused by the uncertainty of the standard to determine the time of duty-rate application, etc. All these defects affect the conviction and sentence of the crime of smuggling common goods and articles. First, special history background caused many defects in the legislation of the crime of smuggling; Second, the crime of smuggling common goods and articles belongs to administrative crime, its degree of harm done to society depends on what the administrative laws and regulations prescribed. Just because of this characteristic of the crime of smuggling common goods and articles, the assessment of tax evasion is mainly decided by the administrative laws and regulations, therefore the legislative level of the administrative laws and regulations administrative laws and regulations directly affects the reasonableness of the assessment of tax evasion. Moreover, the state's eagerness for quick success and instant benefit, the assessment system by the Customs who investigate the case and the interpretations exceeded the authority in the criminal judicature caused the above defects. Aiming at all these above-mentioned circumstances, I put forward my own opinions on perfection of legislations, re-designation of the price assessment organ, standardization of the assessment of tax evasion, rigidness of evidence criterion and formulation of the judicial interpretation to put an end to the interpretations exceeded the authority.