In practice, there have been two different approaches and views on the timing of the transfer of suspected criminal cases: First, the transfer before the case, or direct transfer, means that the tax authorities find that it is suspected of constituting a crime in the process of investigating and handling illegal acts, and transfer the whole case to the public security organs without administrative punishment. Two, after the case transfer, or indirect transfer, refers to the tax authorities in accordance with the "tax administration law" on the parties to a certain administrative punishment, the case will be transferred to the public security organs, the parties shall be investigated for criminal responsibility. These two practices and viewpoints have certain legal basis. The first view is based on the administrative punishment law. Article 22 of the law stipulates that if an illegal act constitutes a crime, the administrative organ must transfer the case to the judicial organ for criminal responsibility according to law. ? Article 38 of the law stipulates that after the investigation of a case is completed, the person in charge of the administrative organ shall review the investigation results and make a decision according to different circumstances, among which? If an illegal act constitutes a crime, it shall be transferred to judicial organs? . The basis of the second view also comes from the Administrative Punishment Law, in which Article 28 stipulates that if the illegal act constitutes a crime and the people's court imposes a fine, if the administrative organ has imposed a fine on the party concerned, the corresponding fine shall be reduced. ? Article 1 1 of the Regulations promulgated by the State Council 20065438 also stipulates:? Before the suspected criminal case is transferred to the public security organ, the administrative punishment decision made by the administrative organ, such as warning, ordering to stop production and business, withholding or revoking the license, withholding or revoking the license, shall not be suspended. According to the provisions of the Administrative Punishment Law, if an administrative organ imposes a fine on a party before transferring a suspected criminal case to a public security organ, the people's court shall, when imposing the fine, offset the corresponding fine according to law. ?
Although both views are reasonable from the literal understanding of legal provisions, from the reality of tax work, the author prefers the latter view. First of all, based on the re-understanding of the relationship between punishment and administrative punishment. Follow? Punishment first? There seems to be a simplified understanding that punishment is more important than administrative punishment. However, from the form of legal responsibility, criminal responsibility and administrative responsibility are two different legal responsibilities, which are different punishment measures taken by different organs because of the different legal nature of the parties' behavior. It does not mean that a party can only bear one legal responsibility for an illegal act, and the punishment must be stronger than administrative punishment. The types and forms of administrative punishment and punishment do not completely correspond, and some can be connected, such as property punishment in administrative punishment and property punishment in punishment, the result of which is the impairment of the property of the parties; Some are independent sanctions, such as ordering to suspend production or business or revoking business license in administrative punishment. Especially for the illegal behavior of the unit, the business license can be revoked as an administrative penalty, which is to revoke the qualification of the business entity of the unit, which is equivalent to the ultimate sanction of the death penalty for natural persons in the penalty, which is obviously heavier than the penalty of fine only. Secondly, accurately understand the relevant provisions of the general provisions of the Administrative Punishment Law. There are some contradictions and ambiguities in the relevant provisions of the specific provisions of the Administrative Punishment Law on whether administrative punishment can be given before the case is transferred, but Article 7 of the general provisions of the law clearly stipulates that if an illegal act constitutes a crime, criminal responsibility shall be investigated according to law, and administrative punishment shall not replace criminal punishment. ? This provision shows that the principle emphasized by law is not? Replace punishment with punishment? , not clear? Punishment? And then what? Punishment? The order of. Since the promulgation of the Administrative Punishment Law from 65438 to 0996, none of the relevant laws, regulations or even rules clearly stipulates whether the case should be transferred before or after. Finally, the priority application of the regulations. At present, this provision, as a special administrative regulation enacted by the State Council in 200 1 year, should be used as the legal basis for giving priority to understanding and applying specific cases in terms of rank effect and time effect. If the tax penalty cannot be imposed before the transfer, Article 1 1 of the Regulations cannot be interpreted. Article 1 1 of the Regulations actually shows that the administrative organ may impose corresponding administrative penalties, including fines, before transferring the suspected criminal case to the public security organ. Based on this, the author believes that the transfer after the case is an effective practice and viewpoint from the legal basis and practical operation. Administrative punishment before transfer can mobilize the enthusiasm of tax authorities for law enforcement to the maximum extent, and stop and reduce the harm caused by the illegal acts of the parties to society in time; After the administrative punishment is transferred to the judicial organs, it can also ensure that criminal responsibility may be investigated, put an end to the phenomenon of substituting punishment for punishment, and punish criminal acts according to law.
Second, the difference in the identification standards of suspected criminal cases
There are also two different views on the criteria for identifying suspected criminal cases: First, based on the Standards for the Prosecution of Economic Crimes by the Supreme People's Procuratorate and the Ministry of Public Security, and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights, as long as the illegal amount of the parties reaches the relevant standards, they can be identified as suspected criminal cases. Second, the tax authorities should comprehensively consider the circumstances and consequences of the illegal facts involved in the illegal act, as well as the subjective fault of the parties. The author believes that the former view is more in line with the reality of tax work, while the latter view is relatively beyond the responsibility and authority of tax authorities. In addition, the tax authorities' understanding and mastery of criminal law, experience in handling criminal cases, and means of law enforcement are unmatched by judicial organs. It is obviously excessive for tax officials to determine whether an illegal act is suspected of committing a crime from the constitutive requirements of a crime stipulated in the criminal law. In addition, from the perspective of distinguishing the responsibilities of departments and clarifying their respective responsibilities, the decision-making power whether it constitutes a crime can only be exercised by the judicial organs. Ultra vires of tax authorities may lead to the phenomenon of substituting punishment for punishment, which is not conducive to punishing criminal acts according to law. Even in some cases, due to the criminal law itself and the development of the situation, the standards of some crimes are set too low after economic development; The criteria for judging the circumstances and harmful consequences of a crime are not clear, but these issues should also be judged by the judicial organs according to the spirit and basic principles of the law.
Third, the transfer procedure of suspected criminal cases is unclear and irregular.
Since the promulgation of the "Regulations" in 200 1, due to the long-term lack of specific work systems and regulations, there are unclear and irregular procedures, which leads to poor coordination among relevant departments and affects the implementation effect of the "Regulations". Mainly: the institutions responsible for transferring and accepting cases are not clear and unified, especially the internal structure and division of labor of public security organs are complex, and cases transferred by tax authorities may be investigated by different institutions; The procedures and formalities of case transfer between tax authorities and judicial organs are inconsistent and irregular, and the handling of compulsory measures after the transfer of the articles involved is irregular; After the case is transferred, it is returned by the judicial organs, and there is no procedural regulation on how the tax authorities handle it. Since 2007, Hami Local Taxation Bureau has strengthened the connection with judicial organs, established corresponding working mechanisms, and further clarified the responsibilities and procedures of tax authorities and judicial organs in transferring suspected criminal cases. However, the specific procedures for the transfer of some cases are still lacking, the most prominent of which is the compulsory measures after the transfer of the items involved. It refers to how to deal with the detention and other compulsory measures taken by the original tax authorities after the tax authorities transfer the case to the judicial organs and the related items are transferred with the case. In practice, there are many methods, some of which only handle the goods handover formalities with the public security organs, and no longer ask the compulsory measures in the hands of the parties; Some will lift the original compulsory measures, but the goods will not be returned to the parties, but the public security organs will sign the goods return documents; Others coordinate with the public security organs, requiring that the parties must be present at the same time when handling the transfer procedures of the articles involved, the tax authorities will lift the original compulsory measures and the parties will sign for them, and the public security organs will take new compulsory measures against the articles involved. In my opinion, as the transfer of articles involved between tax authorities and judicial organs due to the transfer of cases, it belongs to the internal affairs between government departments and cannot give up fulfilling legal obligations to the parties. In addition, after the case is transferred, if the original compulsory measures are left in the hands of the parties, it means that the compulsory measures taken by the tax authorities are still valid, which obviously contradicts the actual situation that the cases handled by the tax authorities have ended. For this reason, it is more appropriate to do the last thing.