Case analysis of the crime of smuggling ordinary goods and articles
Appellant (defendant in the original trial) Wu Mou, female, born on September 29th, 1945, Han nationality, from Shanghai, served as the manager and legal representative of Jiaxing Textile Industry Raw Materials Company from April 1989 to March 1998, and lived in Room 411, No.286, Hexing South Road, Xiucheng District, Jiaxing City. Because of this case, he was released on bail on October 26th, 1999, detained in criminal detention on October 31th, 2111, changed to residential surveillance on October 2nd, 2111, and released on bail on August 8th, and was arrested on June 5th, 2112. He is now in Jiaxing detention center.
Defenders Wang Qiuchao and Deng Jixiang are lawyers of Zhejiang Tiance Law Firm.
Appellant (defendant in the original trial) Tang Mou, male, born on October 6, 1968, Han nationality, from Jiaxing, Zhejiang Province, served as deputy manager of Jiaxing Textile Industry Raw Materials Company in 1996, and served as manager and legal representative of the company in March 1998, living in Room 518, Building 3, Jinfu Apartment, Juvenile Road, Xiucheng District, Jiaxing City. Because of this case, he was criminally detained on October 27th, 1999, changed to residential surveillance on October 2nd, 2111, changed to bail pending trial on the 8th of the same month, and was arrested on June 5th, 2112. He is now in Jiaxing detention center.
Defender Ren Yimin, lawyer of Zhejiang Haihao Law Firm.
Appellant (defendant in the original trial) Shen Mou, male, born on October 1, 1961, Han nationality, from Jiaxing City, Zhejiang Province, served as the deputy section chief and section chief of Business 3 of Jiaxing Textile Industry Raw Materials Company since 1996, and lived in Room 514, Building 113, Zhayan New Village, Jiaxing City. Because of this case, he was criminally detained on October 27th, 1999, changed to residential surveillance on October 2nd, 2111, changed to bail pending trial on the 8th of the same month, and was arrested on June 5th, 2112. He is now in Jiaxing detention center.
The defendant in the original trial, Jiaxing Textile Industry Raw Materials Company, is a state-owned enterprise, whose domicile is on the 7th floor of Jiangnan Building, Zhongshan Road, Xiucheng District, Jiaxing City, and its legal representative is Tang.
the litigation representative is fan hong, male, who is the director of the comprehensive office of Jiaxing textile industry raw materials company.
The Intermediate People's Court of Jiaxing City, Zhejiang Province tried the case that Jiaxing People's Procuratorate accused Jiaxing Textile Industry Raw Materials Company, defendants Wu Mou, Tang Mou and Shen Mou of smuggling ordinary goods, and on June 4, 2112, it made a criminal judgment of (2112) Jia Zhong Zi Chu Zi No.11. Wu, Tang and Shen refused to accept the appeal. Our court formed a collegial panel according to law, examined the papers, questioned the defendant, and listened to the opinions of the defenders. Considering that the facts of the case were clear, we decided not to hold a trial. The trial is now over.
The original judgment found that from February, 1996 to February, 1997, the defendants Wu Mou, Tang Mou and Shen Mou cooperated with Xiamen Special Trade Co., Ltd. (hereinafter referred to as Xiamen Special Trade) in order to reduce the cost of importing wool and other textile raw materials and make the defendant Jiaxing Textile Industry Raw Materials Company (hereinafter referred to as Jiafang Company) profitable, knowing that the fees paid were not enough to pay customs duties and import link taxes. Xiamen Special Trade Co., Ltd., together with others, used the bonded manual of foreign-funded enterprises for customs clearance for 16 times, smuggling and importing 1,258.913 tons of Australian wool and other goods for Jiafang Company, and evading the tax payable * * * totaling more than 26,618,911 yuan.
In the original trial, the defendant Jiafang Company was fined RMB 1.3 million, the defendants Wu and Tang were sentenced to 11 years' imprisonment respectively, and the defendant Shen was sentenced to 4 years' imprisonment. Recover the illegal income of the defendant Jiafang Company of RMB 7,231,771.37. The defendants Wu Mou, Tang Mou and Shen Mou appealed and the defenders of Wu Mou and Tang Mou all claimed that they did not know the smuggling of Xiamen Special Trade and had no intention of smuggling, and demanded acquittal. Shen also said that he was an ordinary business person, who only participated in four businesses in February, 1996 under the arrangement of Wu and Tang, and only helped other departments to handle the delivery of goods, so he proposed that even if it constituted a crime, he could only bear the corresponding responsibility for the four criminal facts, and asked for a revised sentence and probation.
it was found through trial that from February, 1996 to February, 1997, the defendant Jiafang Company negotiated with foreign businessmen the name, quantity and price of the goods to be imported for importing wool and other textile raw materials. Defendants Wu and Tang, who were the managers and deputy managers of Jiafang Company at that time, cooperated with Shen, the head of the company's three business departments, in order to reduce the import cost and make illegal profits, and entrusted Xiamen Special Trade and Jufa Company to import on the basis of 5,111 yuan tax per ton. Jiafang Company was only responsible for receiving goods in Jiaxing. Xiamen Special Trade also entrusted Xiamen Zhongyuan International Trade Office Equipment Co., Ltd. (hereinafter referred to as Zhongyuan International Trade, handled separately) to handle customs clearance matters. After the goods arrived at Xiamen Port, Xiamen Special Trade asked Zhongyuan International Trade to use the tax manuals of foreign-funded enterprises such as feeding and processing in the name of Xiamen Oriental Development Company, and then transported the goods from Xiamen to Jiaxing and handed them over to Jiafang Company. Jiafang Company and Xiamen Special Trade Co., Ltd. used the above method to smuggle and import Australian wool and other textile raw materials for 16 times, with a duty-paid price of 41,436,491 yuan and tax evasion of 26,618,911 yuan. After the incident, the investigation organ froze and seized the deposit of Jiafang Company of RMB 11,531,771.37.
The above facts include the testimony of Huang Lirong, Zhang Zhonghe, Li Yong, Hong Zhiliang, Zheng Xiaodong, Li Zhihuang, Chen Li, Chen Weibin, Chen Jinhua, Bing Wang, documentary evidence such as import application, foreign trade contract, import agency agreement, consignment agreement, customs declaration and special VAT invoice, tax evasion verification certificate issued by the customs and tax verification department, and assistance in freezing issued by the bank. The defendants Wu Mou, Tang Mou and Shen Mou also confessed to the case, and their statements can be mutually confirmed and consistent with the facts proved by the above evidence. The facts of this case are clear and the evidence is true and sufficient. On the grounds of appeal and defense, after investigation, it was found that: (1) When Wu was released on bail on October 26, 1999, he confessed that we knew that the goods of Xiamen Special Trade were either tax-reduced or tax-free. On the 31 th of the same month, I confessed that if all the imports in Xiamen were normal, the price would definitely not be that low. Wu also analyzed in detail the actual composition of the 5,111 yuan per ton tax: one is the port fee, tax, warehousing and transportation fee, etc., which is about 3,111 yuan per ton, and the other is 2,111 yuan per ton, which is the profit for Xiamen Special Trade. Wu also said, I think the import tariff of raw materials must be paid, but the link tax must not be paid, otherwise, the price of 5,111 yuan per ton will not come down. This was felt when I started doing business with Xiamen Special Trade. It can be seen that Wu knows that the duty-free fee in the agency business between his unit and Xiamen Special Trade is an abnormal import price, which is a smuggling act of evading customs taxes. (2) Tang confessed on October 26, 1999 that the cost of 5,111 yuan per ton did not include customs duties and value-added tax levied by the customs. Moreover, Tang confessed that he knew that the value-added tax was 17%, plus normal tariffs, and the tax payable by * * * was about 21% of the dutiable price. Therefore, Tang also knows that Xiamen Special Trade can only help bring the wool of this unit into the country by evading taxes, that is, smuggling. (3) Shen has repeatedly claimed that the special VAT invoice issued by Xiamen Special Trade to Jiafang Company was issued by other companies, which made him feel abnormal. He also confessed that he knew that if Xiamen Special Trade imported normally, this price would not be possible at all. Therefore, Shen knows that his unit entrusts others to act as an agent for import business at a tax payable that is obviously lower than the normal import of goods, and he should be considered to have the subjective intention of smuggling. Wu Mou, Tang Mou and Shen Mou's confession of subjective intent is also consistent with other evidence in this case, so the three defendants and their defenders of Wu and Tang respectively put forward subjective intent without smuggling, which is inconsistent with the facts and will not be accepted. In addition, Shen not only participated in the negotiation and signing of the first four cases of smuggling ordinary goods in February, 1996, but also handled the delivery of goods and bills of exchange in the future business. Therefore, Shen appealed that he could only bear the corresponding criminal responsibility for four criminal facts, which was inconsistent with the facts and was not adopted.
We believe that the defendant Jiaxing Textile Industry Raw Materials Company evaded taxes in order to avoid customs supervision, and entrusted others to declare imported goods at a cost lower than the payable tax, thus evading the payable tax of 26.6 million yuan, which constituted the crime of smuggling ordinary goods; Defendants Wu and Tang are the directly responsible persons in charge of the defendant unit, and defendant Shen is the directly responsible person of the defendant unit, all of which constitute the crime of smuggling ordinary goods, and the circumstances are particularly serious, and should be levied according to law. Wu and Tang played the role of organizing and planning in smuggling ordinary goods, and were the principal offenders; Shen's position and role in smuggling crime is relatively minor, and he is an accessory. According to his specific circumstances in this case, he can be given a mitigated punishment. Wu Mou, Tang Mou, Shen Mou, and their defenders of Wu Mou and Tang Mou, respectively, have insufficient reasons to request a revision of the sentence and will not be adopted. The conviction in the original trial was correct, but the defendant unit colluded with others to smuggle and evade taxes totaling RMB 26.6 million, and the original trial only sentenced him to a fine of RMB 1.3 million, which was extremely light. According to the principle of no additional punishment on appeal, our court will not change the sentence; The duty-paid price of ordinary goods smuggled by the defendant unit is RMB 41.43 million, and all of them have been sold by it. In view of the unclear sales price, the duty-paid price of RMB 41.43649 million can be regarded as illegal income and recovered. The original judgment to recover the illegal income of RMB 72.31,771.37 yuan has no factual basis or legal basis and should be corrected. According to items (1) and (2) of Article 189 of the Criminal Procedure Law of the People's Republic of China, Article 153, Paragraph 1 of Article 25, Paragraph 1 of Article 26, Article 27 and Article 64 of the Criminal Law of the People's Republic of China, and Paragraph 2 of Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Smuggling Criminal Cases,
second, maintain the conviction and sentencing part of the original judgment, and revoke the original judgment to recover the illegal income;
3. Recover the illegal income of the defendant Jiaxing Textile Industry Raw Materials Company of RMB 41,436,491.