The difference between the crime of illegal business operation and the crime of smuggling;
The crime of illegal business operation is manifested in operating franchise, monopoly goods or other goods with restricted business operation as stipulated by laws and administrative regulations without permission, or buying and selling import and export licenses, import and export certificates of origin and business licenses or approval documents as stipulated by other laws and administrative regulations, or illegally operating securities, futures and insurance businesses without the approval of relevant state authorities, or other serious acts that seriously disrupt market order. The crime of smuggling refers to the act of illegally transporting, carrying and mailing goods and articles prohibited or restricted by the state or subject to customs duties according to law in violation of customs regulations, and evading customs duties, if the circumstances are serious.
The boundary between the crime of illegal business operation and the crime of smuggling should be very clear. The former is an act of buying and reselling specific commodities in the domestic market in violation of the regulations on transaction management in the domestic market; The latter is an act of violating customs regulations, evading customs supervision and border inspection, transporting, carrying and mailing articles prohibited from entering or leaving the country, goods and articles restricted by the state or subject to customs duties according to law. However, due to market economy, domestic market and international market are inseparable. In order to reap huge profits, criminals often sell goods in the domestic market abroad, or bring goods from overseas markets to China for resale. This will lead to the involvement of two crimes and easily lead to confusion in judicial practice.
The author believes that the difference between this crime and the crime of smuggling is not whether the illegally bought and sold goods are smuggled goods, but what objects are infringed. Whoever resells smuggled goods in the domestic market, if it belongs to the articles expressly stipulated in other provisions, the problems involved in his behavior belong to the involvement of smuggling crime and this crime, which is not discussed in this paper. Articles that belong to the crime of illegal business operation shall be decided according to the specific circumstances. In the case of prior collusion between smugglers and smugglers, selling smuggled goods in the domestic market should be regarded as "other convenience" as stipulated in the crime of smuggling, and such illegal operators all constitute the crime of smuggling and should not be punished as the crime of illegal business operation.
In addition, the behavior of an actor who indirectly or illegally buys smuggled goods and articles from people other than smugglers (including criminals) and sells them, or sells articles whose import and export are prohibited by the state in inland seas and territorial waters, should generally be punished as the crime of illegal business operation.
These two kinds of crimes belong to the crimes in the market economy, and there are many similarities in the composition of crimes, such as the subject of crime, subjective aspects, and similar objects of infringement. The key to distinguish the crime of illegal business operation from the crime of smuggling lies in the difference in object and objectivity between the two crimes:
1. Different objects mean different direct objects.
The crime of illegal business operation violates the provisions of the state on franchising, monopoly and business license system. The direct objects of infringement are laws and decisions made by the National People's Congress and its Standing Committee, administrative regulations, administrative measures, decisions and orders issued by the State Council, and the economic management system and order maintained by these systems. The crime of smuggling violates the customs law, evades customs supervision and infringes the state foreign trade management system.
2, the objective performance is different.
Generally speaking, the scope of activities of the crime of illegal business operation is within the territory of China without going through the customs; The crime of smuggling means that the perpetrator violates customs regulations, evades customs supervision and border inspection, transports, carries and mails articles prohibited from entering or leaving the country according to law, goods and articles restricted from entering or leaving the country or articles subject to customs duties according to law.
In reality, there are often acts of reselling smuggled goods, which leads to the implicated relationship between the crime of smuggling and other crimes. In this regard, China's laws clearly stipulate that the sale of goods that are knowingly smuggled into the country, if the circumstances are serious, should be investigated for criminal responsibility for the crime of illegal business. Whoever sells bonded goods such as raw materials, spare parts, finished products and equipment that have been approved for import and export, as well as goods and articles imported with special tax reduction or exemption, without customs permission and paying customs duties, shall be subject to the provisions of Article 154 of the Criminal Law and be punished as smuggling. Directly and illegally purchasing goods prohibited by the state from smugglers, or directly and illegally purchasing other smuggled goods and articles, in a relatively large amount, or transporting, purchasing or selling goods prohibited by the state in inland seas and territorial waters, or transporting, purchasing or selling goods and articles restricted by the state in import and export without legal proof, in a relatively large amount, shall also be punished as smuggling. Anyone who sells smuggled goods, indirectly or illegally buys smuggled goods and articles from people other than smugglers (including criminals) and sells them, or sells articles whose import and export are prohibited by the state in inland seas and territorial waters, shall generally be convicted of illegal business operations.
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Elements of smuggling:
Different objects
The object of the crime of evading foreign exchange is the national foreign exchange management system, which has nothing to do with import and export trade and its tariffs; The object of the crime of smuggling is foreign trade control, and its purpose is to prevent tariff evasion and prevent or restrict the import and export of materials that should not be imported and exported through the supervision, management and control of imported and exported goods. It is closely related to import trade and its tariffs.
Different objects
The object of the crime of evading foreign exchange is limited to foreign exchange; The object of the crime of smuggling is much broader than the crime of evading foreign exchange, including all goods and articles that are prohibited or restricted from entering or leaving the country, including foreign exchange, or goods and articles that should pay customs duties.
Expression form
The crime of evading foreign exchange is objectively manifested as evading foreign exchange. The external form of foreign exchange evasion is that foreign exchange obtained from abroad should be transferred back to China instead of back, or the domestic foreign exchange should be transferred abroad privately. However, the objective behavior of the crime of smuggling is that the actor evades customs supervision and illegally transports, carries and mails goods and articles into and out of the country.
subject of crime
The subject of the crime of evading foreign exchange is a special subject, which is limited to state-owned companies, enterprises or other state-owned units, as well as the directly responsible personnel in charge and other directly responsible personnel of these units. Besides, none of them can constitute the crime of evading foreign exchange. When a natural person constitutes a crime, it is obvious that the unit constitutes a crime, otherwise it cannot constitute the crime of evading foreign exchange; The subject of the crime of smuggling is the general subject, and any natural person who has reached the age of criminal responsibility and has criminal responsibility ability can become the subject of the crime of evading foreign exchange. In addition, the unit can also constitute its crime.
Forms of smuggling charges:
The crime of evading foreign exchange is a specific crime; The crime of smuggling is a kind of crime, including the crime of smuggling weapons and ammunition, the crime of smuggling counterfeit money and the crime of smuggling cultural relics.
The crime of smuggling means that an individual or unit intentionally violates customs regulations, evades customs supervision, transports contraband or evades customs duties in various ways, and the circumstances are serious. The specific charges are:
(1) Crime of smuggling weapons and ammunition;
(2) the crime of smuggling nuclear materials;
(3) the crime of smuggling counterfeit money;
(4) Crime of smuggling cultural relics;
(5) Crime of smuggling precious metals;
(6) the crime of smuggling goods and articles whose import and export are prohibited by the state;
(7) the crime of smuggling obscene articles;
(8) the crime of smuggling ordinary goods and articles;
(9) Crime of smuggling solid waste.