Research On The Difficult Problems Of Judicial Application Of The Crime Of Smuggling Common Goods And Articles

The crime of smuggling is stipulated as a categorical crime against socialist market economy order in the 97 Criminal Law,and it was identified the different charges depending on the object of smuggling.The crime of smuggling general goods and articles is listed as the supplementary crime in smuggling crimes has its special.With the emergence of new situations and new problems in smuggling,the crime of smuggling general goods and articles have some difficult problems in practice of judicial identification such as subjective and objective aspects,the division of accomplishment and non-accomplishment,the division of the principal criminal and accessorial criminal and the criminal forms and other aspects.The theoretical and practical circles are showing various opinions about this,so it is necessary to further explore it to reach a consensus.By combing and analyzing the existing theories and viewpoints,it is concluded that the subjective content of the crime includes both direct intention and indirect intention.Objective aspect about the behavior of the “Selling domestically for profit”,“For profit”is just on behalf of the actor’s subjective intent,should not be a necessity for conviction;As for the scope of “smuggler” in indirect smuggling and the identification of “ relatively large amount ”.It is believed that“smuggler” should be the leading and controlling role in the whole smuggling activity.Generally,the individual who provides help should not be identified as the “ smuggler ” here,and the “ amount ” in“relatively large amount” should refer to the value or price of the smuggled goods,which is different from the amount of tax payable.On the issue of the accomplishment and non-accomplishment problem,this crime has the possibility of non-accomplishment on the criminal cessation pattern,and it is different from other criminal types.Because of the different methods of smuggling,the criteria for the accomplishment and non-accomplishment is different also.On the aspect of dividing accessory offender and recognizing the Principal and Accessory,This crime has unilateral accessory,and in the smuggling activities,for the provision of lookout,the “watch dog” should be treated as a helper according to China’s criminal law on the division of the standard of the principal and accessory in this crime;on the crime forms,this crime and the crime of smuggling across the country(border)belongs to the imaginative joinder.This crime and the crime of tax evasion belong to legal item co-petition offence,and the act of bribery to customs officers form an implicated offense with this crime.To the above situation,we conduct one crime punishment.However,if another criminal acts committed after the occurrence of the smuggling,it shall be imposed combined punishment for multiple crimes.