Guangdong Provincial Higher People's court

For guidance on the destruction of some concrete problems of the socialist market economic order in criminal cases

Two OO two years in July 2nd

 

 

One, about a criminal case of smuggling

L, on the subjective intention of smuggling crime. Subjective intention of smuggling crime refers to the act of knowing that their acts in violation of customs regulations, evade Customs supervision, tax evasion and import and export of goods, items payable, or evade the relevant goods, goods import and export ban provisions and the implementation of the above behavior.

"Knowing" refers to already know or should know their acts in violation of customs regulations. The actor has denied the intent of smuggling cases, should according to the usual experience, the behavior of human specific behavior comprehensive examination and identification.

2, any of the following circumstances, can be recognized that he had smuggled deliberately, but there is evidence that it is a deluded except:

(1) transport, carry, prohibited by the state from entering or leaving the country, or restriction of entry and exit, no legal proof of the goods, articles, evade Customs supervision;

(2) in the vehicle, the boat with sandwich box, "hidden", an underwater towed box a special tool to transport, carry goods, articles, evade Customs supervision;

(3) to significantly lower than the normal import and export price, tax "tax package" or customs trade;

(4) engaged in foreign trade, customs clearance, transportation, port cross-border transportation practitioners in the import and export business intentionally acts violating the customs supervision.

Determination of 3, about a smuggling special articles. Smuggling crime behavior of specific goods, but deliberately smuggling, subjective must also object that is counterfeit drugs, smuggling, obscenity, guns and ammunition and other special items. In dealing with this kind of case, it is necessary to prevent the objectivity, it shall carefully examine the behavior of defense analysis. Enough to recognized that he had the intention of smuggling, but it does not identify the specific items that smuggling is, generally can be treated as the crime of smuggling common goods.

4, about the problem of smuggling accomplices. "Criminal law" the 156th regulation "with smuggling criminal conspiracy" is mainly suitable for direct implementation of criminal activity and not only provide convenient help make the crime of smuggling. To smuggle knowingly, and provides account, invoice, certificate, funds, loans to, or for the transport, storage, post, the sale of goods, can be regarded as a "conspiracy". In the import and export of goods commissioned intermediary, agent, activities, knowing that the client cannot legally agent import and export goods while still entrusted its agent import and export, or the entrusted people do not provide real contracts, invoices, certificates, can also be used "provisions of the criminal law" article 156th of punishment.

To advance with the smugglers plotting, planning, communication, organization, division of labor to carry out acts of smuggling, regardless of whether they are directly involved in smuggling, shall be in accordance with the "provisions of the criminal law" on the common crime, according to the names of crime shall be prosecuted for criminal responsibility.

5, about the crime of smuggling and attempted crime problem. For different types of smuggling cases, the boundary of the accomplished and Unaccomplished Offense is different, can not think of smuggling crime must be in the behavior of the smuggled goods sales profit is accomplished. In specific cases, the smuggling, or to enter our territorial waters, the water line of the accomplished offense and the attempted; Customs Smuggling, should be based on whether the actor to the Customs for false declaration to limit the accomplished offense and the attempted; round off smuggling, or to cross country (border) is accomplished with the environmental limits the attempted; "criminal law" stipulates that the 154th "follow-up smuggling" situation, should be based on the sales profit is to distinguish whether the crime.

6, about the crime of smuggling principal, accessory problem. The defendant and the implementation of smuggling act for hire, shall be in accordance with its position and role in the crime accurately distinguish principal, accessory. If hired, responsible for the recruitment of staff actively contact delivery, command course or transport routes, or be responsible for customs declaration, inspection and other matters, cannot be because it is not the owner, just hire personnel are recognized as an accessory; general transportation, customs declaration, crew members in order to get a small amount of remuneration or only receive wages, not to participate in the direct the spoils, employers or other command and implementation, participate in smuggling, can generally be identified as an accessory, shall be given a lighter, mitigated punishment.

The accessory smuggling crime reduction of penalty, can reduce the punishment for punishment, can reduce the punishment for the additional penalty, at 1 times the tax evasion of the fine penalty.

7, "criminal law" the provisions of article 411st of indulging smuggling, is the punishment of the customs staff Xunsi fraud, used his powers to laissez faire, conniving smuggling activities, if the circumstances are serious, the objective performance is generally not as. If the customs staff and smugglers premeditated, provides the convenience for the spoils, an event, belong to smuggling accomplices.

Customs officers indulging smuggling and bribery, bribery and indulgence in the crime of smuggling in the felony punishment.

8, the unauthorized sale of bonded goods or specific goods, tax evasion duty shall be punished in accordance with the provisions of the criminal law, "" the provisions of article 154th; however, not sales is not included in calculation of the crime amount, not by offense.

9, the illegal trade of import and export goods duty reduction or exemption in accordance with the approval, "criminal law" article 225th (two) shall, according to the crime of illegal business operation process. If the sale of documents at the same time, provide the seal, to the customs declaration for certain goods of duty reduction or exemption, to help each other to handle the import customs clearance procedures, in accordance with the "criminal law" article 154th (two) rule, that the two sides is the common act of smuggling.

10, without legal approval procedures and the smuggling of zero tariffs on goods entering the behavior, not evade taxes, does not constitute a crime of smuggling.

11, according to the Supreme People's court "several issues about the specific application of law in the trial of criminal cases of smuggling explanation" provisions, that smuggled goods or articles, the amount of tax evasion, smuggling crime should be based on the applicable tariff, tax rates, exchange rates and the customs of the after tax price calculation, and to prove the Customs for quasi. The certificates issued by the people's court in the trial of the case in question of customs, customs approval shall require the dutiable value basis.

 

Two, about the financial crimes

12, about the illegal design, manufacturing, selling, or illegally provides transportation counterfeit offset problem of the nature of the act. According to the Supreme People's court "national courts in cases of financial crimes seminar" (hereinafter referred to as the "summary") spirit, illegal design, manufacturing counterfeit offset, or illegally provides, sell, transport counterfeit offset behavior, should be in accordance with the counterfeit currency crimes shall be investigated for criminal responsibility. Processing is not the crime amount, according to the circumstances of the crime punishment.

13, about the crime of illegal loans amount standard. According to the "summary" section second (three) regulations, combined with the actual situation in our province, our province court for illegal loans to people who have connections with the case, resulting in loss of 300000 yuan less than 1000000 yuan for the "great loss", 1000000 yuan for the "great loss". For illegal loans with their clients' money cases and illegal lending, loans to the case, resulting in loss of 1000000 yuan less than 5000000 yuan for the "great loss", 5000000 yuan for the "very big losses".

The qualification of the 14, "criminal law" on the provisions of article 194th of the bills defraud crime and the crime. Actors in the implementation of a fraud, using both the checks, drafts, promissory notes, and other bank settlement vouchers, depending on its bills, vouchers, the bills defraud crime and crime of financial certificate fraud in one felony punishment, crime and penalty does not apply; if in different cases of fraud, respectively using checks, drafts, promissory notes and other bank settlement vouchers, should be separately identified the bills defraud crime and crime of financial certificate fraud, punishment.

15, about the crime of fraud in financing the amount standard. Acts of fraud 200000 yuan for the "large amount", 200000 yuan less than 1000000 yuan for the "huge amount", "more than 1000000 yuan for huge amount".

16, about the bills defraud crime, crime of financial certificate fraud, loan fraud, credit card fraud, securities fraud, insurance fraud amount standard. The perpetrators these types of fraud, in the amount of 100000 yuan for the "large amount", 100000 yuan less than 500000 yuan for the "huge amount", "more than 500000 yuan for huge amount".

17, about the crime of fraud on letter of credit amount of standard. The perpetrators of letter of credit fraud in the amount of 200000 yuan less than 1000000 yuan for the "huge amount", "more than 1000000 yuan for huge amount".

18, commit fraud, the bills defraud crime, crime of financial certificate fraud or crime of fraud on letter of credit, caused a direct economic loss of 500000 yuan of above, belong to "especially heavy losses are caused to the interests of the state and the people".

19, the unit commit fraud, the bills defraud crime, crime of financial certificate fraud, credit card fraud, insurance fraud "huge amount", "huge amount" standard, according to 5 times the amount of crime the crime person standard master.

 

Three, about the contract fraud cases

Line 20, on contract fraud cases in the general civil fraud and contract fraud. "Several cases of criminal law" the provisions of article 224th, the premise is the act with intent of illegal possession, which is the main standard to distinguish the civil fraud and contract fraud. Intentional illegal possession, reference may be made to the Supreme People's Court on the trial of cases of fraud in 1996 "the concrete application of law interpretation of several issues" and the 2000 "national courts in cases of financial crimes seminar" of the relevant provisions.

21, about the individual contract fraud crime sentencing convicted the amount standard. Guangzhou, Shenzhen, Zhuhai, Shantou, Zhongshan, Dongguan, Jiangmen, Foshan city and municipality, county, district 50000 yuan to the "large amount", 50000 yuan less than 500000 yuan for the "huge amount", "more than 500000 yuan for huge amount".

Zhanjiang, Maoming, Huizhou, Chaozhou, Jieyang, Shanwei, Meizhou, Heyuan, Zhaoqing, Shaoguan, Qingyuan, Yangjiang, Yunfu and the municipality, county, district 40000 yuan to the "large amount", 40000 yuan less than 400000 yuan for the "huge amount", 400000 yuan more than the amount is especially huge "".

Guangzhou railway transportation courts trial in Guangdong Province crime of contract fraud cases, master according to the crime occurred standard; crime in Guangdong province outside of the case, in accordance with the "opinions" twenty-first section second of the standard.

22, about the unit crime of fraud of contract conviction sentencing criteria. Units in the implementation of contract fraud, in the amount of 500000 yuan for the "large amount", 500000 yuan less than 3000000 yuan for the "huge amount", "more than 3000000 yuan for huge amount".

 

Four, about the unit crime case

23, the people's Procuratorate accused of unit crime, the people's court in the case review stage should review the procuratorial organs have the litigation representative not specify the units of the people. If not specified, shall be required to specify the. Procuratorial organs to adhere to the unit crime prosecuted refuses to specify the litigation representative, the people's court shall not accept the.

The trial period, litigation on behalf of the accused unit who notice does not take part in proceedings, may order the defendant to the unit to suspend the trial, the directly responsible persons in charge and other directly responsible personnel continue to hear.

24, the crime unit has been cancelled in prosecution, if the procuratorial organs to adhere to the unit crime prosecution, the people's court shall not accept the. The trial period the defendant units cancelled, order the defendant to the unit to suspend the trial, the directly responsible persons in charge and other directly responsible personnel continue to hear.

25, the unit crime after the crime unit is divided or merged, and change, in the trial is still the original crime unit as the unit. Fine penalty imposed on the defendant unit, by succeeding to the rights and obligations of the unit as a person. The fine is higher than that of the change unit bearing property, which can be deducted in execution.

26, unit joint crime or units and individuals of common crime, should be based on their position, in the role of common crime, punishment in accordance with the "provisions of the criminal law" on the main accomplice, respectively. On the common crime and unit crime person should be in accordance with the implementation of the status and role, in accordance with the provisions of the criminal law, "" about personal crime punishment, not responsible personnel according to the unit crime sentencing.

The directly responsible person in charge of 27, the unit crime and other personnel directly responsible, if in the unit crime status, significantly different, can differentiate the principal, accessory. But this distinction and responsible personnel original posts are not necessarily linked, the principal persons in charge directly responsible is not of course. The accessory, mitigation of punishment in accordance with the "criminal law" can be criminal provisions of the responsible unit of statutory punishment mitigated or.

The person in charge directly responsible and other persons directly responsible for the crime of unable to distinguish principal, accessory, shall be punished according to the role of its own in the unit crime plays.

28, the crime unit collective decided to surrender, or principal responsible person on behalf of the unit to surrender, or participate in the unit crime the directly responsible person in charge to surrender, should be regarded as the crime of unit voluntary surrender, to be on the unit and a lighter punishment.

29, the crime unit voluntary surrender, the directly responsible person in charge and other directly responsible personnel constitute a surrender, should be in accordance with the relevant provisions "review to determine the interpretation of criminal law" and the Supreme People's court. Truthful account of the main facts of a crime, the trial, in accordance with the "criminal law" the sixty-seventh paragraph first lighter, mitigated punishment or be exempted from punishment; refuse to give the main facts of a crime or escape accountability, not to surrender.

 

Two OO two years in June