Basic case and trial process
Shenyang An Guang Nonferrous Metal Recycling Co., Ltd. is a Sino-foreign joint venture. At the beginning of 2000, Zhang Jianmin was appointed as the general manager of Shenyang An Guang Nonferrous Metals Recycling Co., Ltd., and was fully responsible for the company's operation. In business dealings, we reached an oral agreement with Taiwanese businessman Du: Shenyang Nonferrous Metals Recycling Co., Ltd. imported solid waste for Du. Therefore, Shenyang Nonferrous Metals Recycling Co., Ltd. imported 7 containers of solid waste for Du through Jinzhou Port from May to September 2006 by using the Import Registration Certificate of Important Industrial Products and the Import Waste Approval Certificate issued by the State Environmental Protection Administration. Among them, the first five boxes were imported normally. From the sixth box, Du hid the used computer mainframes that were banned from importing in China. In the process of criminal acts, Du and Du Zhuanzhong (Du Zhidi) have a clear division of labor: Du organized packing and delivery (9 containers) in the United States, and Du Zhuanzhong hired someone to disassemble and hide the used computers (3 containers) in Malaysia, and lied about their names for customs declaration and inspection. After that, these three containers were transported to Jinzhou Port together with other containers with used computer mainframes from the United States. Before customs declaration, Du Xiang provided the real loading details of the mainframe with used computers. Zhang Jianmin deliberately concealed the fact that China banned the import of waste computers, declared goods under the names of waste wires, waste motors, waste hardware and electrical appliances, and falsely reported the packing list for inspection, resulting in the imported sixth container of solid waste being transported back to Shenyang An Guang Nonferrous Metals Recycling Co., Ltd. for repackaging after customs clearance, and then being detained by the public security organs on the way to Guangdong Nanhai Duquancai Factory. Another 8 containers of solid waste were detained in Jinzhou Port according to law. Of the nine containers of solid waste imported by Shenyang Nonferrous Metals Recycling Co., Ltd. for Du, * * * contained 55. 1 ton of waste computer mainframe which was forbidden to be imported in China, among which Du Zhongzhong packed 27 tons of waste computer mainframe in three containers packed in Malaysia.
On August 28th, 2002, Jinzhou People's Procuratorate filed a public prosecution with Jinzhou Intermediate People's Court on suspicion of smuggling solid waste. Jinzhou Intermediate People's Court filed a case on August 28, 2002, and formed a collegiate bench to hear the case according to law. The case was postponed for one month with the approval of the Higher People's Court of Liaoning Province, because there was a great controversy over whether the used computers belonged to the waste prohibited by the state and when the import ban was started. On September 20, 2002, Jinzhou Intermediate People's Court held a public hearing to hear the case.
Jinzhou Intermediate People's Court held through trial that Shenyang An Guang Nonferrous Metals Recycling Co., Ltd. evaded customs supervision and lied about importing 55. 1 ton of waste computer mainframes for others in the name of the company, which seriously violated the national customs supervision system and environmental protection system, and its behavior constituted a crime of smuggling solid waste, which was a unit crime and should bear corresponding criminal responsibility. Zhang Jianmin, as the person in charge directly responsible for the unit, knew that the used computer mainframe belonged to the solid waste that was forbidden to be imported in China. In order to avoid customs supervision, he lied about the computer name and imported it for others. The circumstances were serious, which constituted the crime of smuggling solid waste and should be punished according to law. Du Chuanzhong knows that waste computer mainframes are solid wastes that are prohibited from being imported in China. In order to avoid customs supervision, he hired overseas employees to disassemble and classify waste computers and hid 27 tons of waste computers in containers in disguise. Its behavior has constituted the crime of smuggling solid waste and should also be punished according to law.
On June 29th, 2002, Jinzhou Intermediate People's Court ruled that the defendant Shenyang An Guang Nonferrous Metal Recycling Co., Ltd. was guilty of smuggling solid waste and fined 300,000 yuan. Zhang Jianmin was sentenced to 4 years in prison for the same crime; Du Chuanzhong was sentenced to 3 years' imprisonment, suspended for 4 years and fined 1.5 million yuan for the same crime.
Several legal issues involved in this case
Jinzhou Customs, Jinzhou People's Procuratorate and Jinzhou Intermediate People's Court paid a special visit to the State Environmental Protection Administration because of the application restrictions of laws and regulations on the import of used electrical appliances.
On August 27th, 2002, Jinzhou Customs Smuggling Crime Investigation Branch sent a letter to the State Environmental Protection Administration, asking for clarification: (1) Whether the used computers belong to the solid waste officially prohibited by the state from April 1 2000; (2) Is there any contradiction between the Notice on Issues Related to the Import of Category VII Wastes (No.UNCED [2000] 19) and the Catalogue of Prohibited Imports on the implementation time of banning the import of used computers, that is, when did the import of used computers start according to law? What is the relationship between the provisions of these two documents on this issue?
In response to two questions asked by Jinzhou Customs Smuggling Crime Investigation Branch, on September 1 1, 2002, the State Environmental Protection Administration made a clear explanation in the "Reply on the Issue that Waste Computers Belong to the National Prohibited Import of Wastes" (Huan Han [2000] No.237): Since April 1, 2000, China has
On the time of banning the import of used computers in China
According to Article 25 of the Law on the Prevention and Control of Environmental Pollution by Solid Wastes passed by 1995, the state authorizes the competent administrative department of environmental protection of the State Council to formulate, adjust and publish the catalogue of solid wastes that can be used as imported raw materials, and the import of solid wastes that are not listed in the catalogue is prohibited.
In order to implement this regulation, Articles 6 and 8 of the Provisional Regulations on Environmental Protection of Waste Import jointly issued by the former State Environmental Protection Bureau, the Ministry of Foreign Trade and Economic Cooperation, the General Administration of Customs, the State Administration for Industry and Commerce and the State Commodity Inspection Bureau on 1 March 19961day stipulate that the State Environmental Protection Bureau, together with the Ministry of Foreign Trade and Economic Cooperation and the General Administration of Customs, shall formulate, adjust and publish the national import restrictions. It is prohibited to import all wastes not included in Annex I of these Provisions. The seventh category of waste listed in this catalogue is "all kinds of waste hardware, motors and electrical products".
On June 26, 2000, the State Environmental Protection Administration, the Ministry of Foreign Trade and Economic Cooperation, the General Administration of Customs and the State Administration of Entry-Exit Inspection and Quarantine jointly issued the Notice on Issues Related to the Import of Category VII Wastes (UNCED [2000] 19). Article 1 of the Notice clearly stipulates that since February 1 day, 2000, the seventh category of waste does not include waste electrical appliances such as waste computers, waste monitors and picture tubes.
It can be seen that 1 1 Waste electrical appliances such as waste computers, waste monitors and waste picture tubes have been deleted from the Catalogue of Wastes that can be used as raw materials and whose import is restricted by the state. According to Article 25 of the Law on the Prevention and Control of Environmental Pollution by Solid Wastes, it is prohibited to import wastes that are not listed in the list of wastes restricted by the state and can be used as raw materials. Since April 1 2000, the relevant state departments have explicitly banned the import of used computers.
Relationship between the Catalogue of Prohibited Goods (Fifth Batch) and the Notice on Issues Related to the Import of Category VII Wastes (UNCED [2000] 19)
On July 3, 2002, MOFTEC, the General Administration of Customs and the State Environmental Protection Administration jointly issued Announcement No.25 of 2002, which published the Catalogue of Prohibited Goods (IV). The Catalogue of Prohibited Imports (the fifth batch) stipulates that the state prohibits the import of 2 1 discarded mechanical and electrical products, including discarded computer equipment. The announcement also stipulates that it will be implemented as of August 15, 2002.
As far as the relationship between the aforementioned Notice on Issues Related to the Import of Category VII Wastes (Environment and Development [2000] 19) and the Catalogue of Prohibited Commodities (Fifth Batch) (Announcement No.25 of the Ministry of Foreign Trade and Economic Cooperation in 2002) is concerned, the scope of abandoned mechanical and electrical products listed in the latter includes most of the prohibited discarded electrical products listed in the former, but its scope exceeds the former. Therefore, in general, the Catalogue of Prohibited Commodities (Fifth Batch) (Announcement No.25 of MOFTEC in 2002) came into effect on August 15, 2002. However, for 1, the abandoned mechanical and electrical products that have been banned by the state since April 2000 should still be understood as 1, which has been banned by the state since April 2000. It is considered that the view that the waste electrical products such as waste computers listed in the Notice on the Seventh Batch of Waste Import (Environment and Development [2000] 19) are prohibited from being imported by the state from August 15, 2002 does not conform to the Regulations on the Management of Waste Import Environment formulated by the relevant competent departments of environmental protection, customs, foreign trade and economic cooperation and the actual situation of the supervision and management of waste import environment.
Enlightenment of this case to control the illegal import of "foreign garbage"
With the deepening of opening to the outside world and China becoming a full member of the World Trade Organization, the breadth and depth of China's participation in international trade will be further expanded. The possibility that "foreign garbage" will cross the ocean and enter China will increase accordingly.
The environmental protection department should promptly transfer the cases of illegal import of waste electrical appliances and other "foreign garbage" to the judicial organs according to the prescribed procedures, actively cooperate with the judicial organs to deal with them seriously according to law, and actively cooperate with the customs to do a good job of returning the goods, so as to deter the crime of smuggling solid waste and curb the flood of "foreign garbage".