Definition: Taxpayers and withholding agents falsify, alter, conceal or destroy account books and vouchers without authorization, overstate expenditures and understate incomes in account books, refuse to declare to tax authorities, and fail to pay or underpay taxes payable or withheld, which is a serious act.
1) object: tax collection and management system.
2) Objectively speaking, (1) the means of tax evasion is (1) the act of forging, altering, concealing and destroying account books and vouchers without authorization, thus losing the true and direct tax basis. (2) Overlisting expenditure or under-listing income in the account books, thus reducing the tax payable. (3) Refusing to file tax returns notified by the tax authorities and evading taxes. (4) making false tax returns to the tax authorities. (5) The withholding agent fails to pay or underpays the tax withheld or collected by the above means. (2) Serious circumstances are necessary, including (1) the tax evaded by taxpayers accounts for more than 10% but less than 30% of the taxable amount, and the tax evaded is between 10,000 yuan and10,000 yuan. (2) The amount is less than the above requirements, but he has received two administrative penalties (non-criminal penalties) for tax evasion. (3) The amount of tax evasion by withholding agents accounts for more than 30% of the tax payable and the amount is more than 654.38+10,000 yuan. Recidivism should be given a heavier or heavier punishment.
3) Subject: Special subjects, namely taxpayers and withholding agents, including individuals and units.
4) Subjective aspect: Intentionally, the purpose is to evade tax payment obligations and seek illegal interests.
5) Determination: (1) Tax avoidance that complies with tax collection and management laws and regulations is neither illegal nor a crime. (2) Unconscious tax evasion or negligent tax evasion, lacking subjective and objective elements, does not constitute a crime, and should pay taxes in time and give necessary administrative penalties. (3) Intentional tax evasion, but the circumstances are not serious, does not constitute a crime. However, those who violate the tax law shall be given administrative punishment.
I. Crime of smuggling ordinary goods and articles
(1) The indictment alleges that:1April 1997, the defendants Tang Jian,,, Wang Peiqiong and * * conspired to entrust others to declare imported furniture with a value of more than 520,000 yuan (with a tax payable of more than 390,000 yuan) and to declare and pay taxes worth more than 654.38+10,000 yuan, which resulted in tax evasion of more than 290,000 yuan and illegal profits.
In view of the above facts, the public prosecution agency read the written testimony of witnesses who did not appear in court, such as Gu Aiming, Cao Song, Liu Zheng, etc., read and produced the cargo documents, the customs declaration form, the customs import tariff special payment book and the customs import tax verification form, and cross-examined the statements made by Tang Jian and Zhang during the investigation.
(2) The indictment also alleges that from June 1997 to February 1998, Tang Jian, Zhang and Wang Peiqiong respectively entrusted others to declare three batches of central air-conditioning spare parts with a value of 65,438 yuan+8,000 yuan (taxable amount of 860,000 yuan).
In view of the above facts, the public prosecution agency read the written testimony of witnesses who did not appear in court, such as Xu Qiang, Gu Yongchun, Cheng Lei, Chen, He Guoguang, Zhao Ge, Li Cunfa and Ye Zhizhong, read and produced the cargo documents, the customs declaration certificate, the Special Payment Letter for Customs Import Duty and the Contact Sheet for Tax Evasion in Smuggling Cases, and cross-examined the statements made by Tang Jian and Zhang during the investigation.
During the trial, witnesses Zhai and Cui testified in court, respectively stated the facts related to the duties of the defendant Wang Peiqiong, and answered the inquiries and questions of both the prosecution and the defense and the defendant Wang Peiqiong.
The public prosecution agency believes that the defendants Tang Jian, Zhang and Wang Peiqiong * * * evaded the tax payable of RMB 654.38+RMB 0.05 million for the crime of smuggling, which has constituted the crime of smuggling ordinary goods and articles, and the amount is extremely huge, and should be punished in accordance with the provisions of Item (1) of Paragraph 1 of Article 153 of the Criminal Law of People's Republic of China (PRC) (hereinafter referred to as the Criminal Law). After the defendant Tang Jian arrived at the case, he was able to voluntarily confess the smuggling crime that the investigation department had not yet mastered, which was a voluntary surrender. According to the provisions of Article 67 of the Criminal Law, he should be given a lighter punishment.
Defendants Tang Jian, Zhang and Wang Peiqiong have no objection to the above evidence submitted by the public prosecution agency. Defendants Tang Jian and Zhang have no objection to the above facts alleged in the indictment. However, Zhang pointed out that Wang Peiqiong did not collude and participate in the above smuggling facts. During the investigation, review and prosecution, Zhang's statement about Wang Peiqiong's complicity and participation in the above smuggling was caused by the investigators' inducements, so it was untrue. Defendant Wang Peiqiong denied in court that she plotted and participated in the above smuggling.
Defenders of Tang Jian and Zhang have no objection to the above facts, evidence and charges accused by the public prosecution agency. Tang Jian's defender suggested that considering that most of the tax payable for tax evasion has been recovered after the incident, Tang Jian should be sentenced by Article 153, paragraph 1 (2) of the Criminal Law. Zhang's defender suggested that Zhang is the other person directly responsible for the crime committed by a profit-making unit and should be convicted and punished in accordance with the provisions of the second paragraph of Article 153 of the Criminal Law.
Wang Peiqiong's defender has no objection to the evidence of Wang Peiqiong's crime read and produced by the public prosecution agency, pointing out that Wang Peiqiong has always denied the fact that * * * conspired to participate in the above smuggling since he arrived at the case, and Zhang retracted his confession during the trial investigation, review and prosecution. Within a few months after his arrival, Tang Jian did not confess that Wang Peiqiong conspired and participated in the above-mentioned smuggling acts, so there was insufficient evidence to accuse Wang Peiqiong of participating in the smuggling crime. Even if Wang Peiqiong is found to be involved in this crime, it can only constitute the crime of indulgence and smuggling as stipulated in Article 4 1 1 of the Criminal Law.
It was found through trial that:
(1)1In April, 1997, Shanghai Xiangming Real Estate Co., Ltd. imported a batch of furniture from Italy, with a value of more than 520,000 yuan (the tax payable was more than 390,000 yuan). The company asked the defendant Tang Jian to declare the business of 6.5438 yuan+750,000 yuan through others. In order to seek illegal interests, Tang Jian wooed the defendants Zhang and Wang Peiqiong. Zhang used computers and printers at home to forge customs declaration documents by changing the unit price of goods, and Wang Peiqiong decided to pay less tax. Tang Jian and Wang Peiqiong went through the formalities of customs declaration and tax payment, and declared and paid taxes at a price of 654.38+10,000 yuan, including tax evasion of 290,000 yuan and illegal profit of 4,000 yuan.
The facts in this paragraph are confirmed by the testimony of Gu Aiming and (1), deputy general manager of Shanghai Xiangming Real Estate Co., Ltd., the goods documents and tax payment vouchers. The total price of this batch of furniture is more than 62,800 US dollars, and the customs declaration fee is175,000 yuan, which is paid by Zhang. (2) A forged customs declaration form, stamped with the special seal of Sanlian customs broker and the private seal of customs declarant, and signed by Wang Peiqiong, the price of the customs declaration form is $654.38+6500 yuan. (3) Waigaoqiao Customs Special Payment Letter for Import Taxes, the approver is Wang Peiqiong's work number, and the total tax amount is 103600 yuan. (4) The testimony of Customs officer Zhai in court and the written testimony of Customs officer Liu Zhenghe prove that the "Wang" in the above-mentioned furniture price evaluation column is Wang Peiqiong's signature, which is consistent with Wang Peiqiong's job behavior. (5) The Checklist of Imported Goods provided by Shanghai Customs proves that the above furniture tariffs and value-added tax totaled more than RMB 390,000. (6) Zhang's statement during the investigation and Tang Jian's confession mutually confirmed the fact that Wang Peiqiong colluded and participated in the above smuggling activities. The above evidence, after cross-examination by the court, becomes the basis for ascertaining the facts in this section.
(2)1February 1997 to1February 1998, Alstom Refrigeration Engineering Technology (Beijing) Co., Ltd. imported central air-conditioning spare parts in three batches with a value of 1.8 million yuan (taxable amount of 860,000 yuan). The company entrusted Xu Qiang (handled separately) to declare customs through others, and the total cost was 380,000 yuan. In February of the same year, 65,438+,Xu Qiang gave Tang Jian the first and second batches of central air conditioning spare parts at the price of155,000 yuan. Tang Jian, together with Zhang and Wang Peiqiong, used the above-mentioned means to pass off "control box parts" as "central air-conditioning parts" at a cost of only 70,000 yuan. The illegal profit of more than 80,000 yuan was divided equally among Tang Jian, Zhang and Wang. 1February 1998, Xu Qiang entrusted Tang Jian with the third batch of "central air-conditioning spare parts" for customs declaration, with the amount of105,000 yuan. The three defendants learned that the customs declaration of the first two batches of goods was suspicious, so they changed their names to "pneumatic power plant" to continue the false customs declaration, and only paid more than 30 thousand yuan in taxes. The illegal profit of more than 40,000 yuan is still divided equally among Tang Jian, Zhang and Wang Peiqiong.
The facts in this section are supported by (1) written testimony, cargo documents and tax payment vouchers of Chen He, an employee of Alstom Refrigeration Engineering Technology (Beijing) Co., Ltd., which proves that the total price of the above goods is more than USD 220,000, and Tang Jian was paid RMB 260,000 less tax. (2) A certificate of forged customs declaration, signed by Wang Peiqiong, the customs assessor; The special payment form for customs import duties shows the work number of the manufacturer Wang Peiqiong, and the total tax amount is 654.38+0.079 million yuan. (3) Customs officers Zhai and Cui testified in court, proving that the appraiser's signature of the above-mentioned customs declaration certificate is Wang Peiqiong himself and the manual number of the above-mentioned special payment book is Wang Peiqiong's. (4) The written testimony of Zhao Ge, the former customs declarant of Shanghai Ogilvy International Freight Co., Ltd., proves that Wang Peiqiong and Tang Jian gave the forged customs declaration form to Zhao Ge, and Wang Peiqiong assessed the price and collected the tax. (5) The contact list of tax evasion in smuggling cases provided by Shanghai Customs proves that the above-mentioned central air-conditioning spare parts should pay more than 860,000 yuan. (6) Zhang's statement during the investigation and Tang Jian's confession mutually confirmed the fact that Wang Peiqiong colluded and participated in the above smuggling activities. The above evidence, after cross-examination by the court, becomes the basis for ascertaining the facts in this section.
In our court's opinion, the public prosecution agency accused the defendants Tang Jian and Zhang * * * of smuggling and evading the tax payable of RMB 6.5438+0.05 million, and the basic evidence was sufficient, and the two defendants also confessed. Defender has no objection to the above facts, evidence and allegations of Tang Jian and Zhang. The fact that the public prosecution agency accused Tang Jian and Zhang of committing the crime of smuggling goods and the charges were established, and our court confirmed them.
Whether the defendant Wang Peiqiong participated in the crime of smuggling is the focus of controversy between the prosecution and the defense. According to the results of cross-examination in court, it can be concluded that Zhang's evasion of tax payable and forgery of customs declaration documents were all recognized by Wang Peiqiong. The customs declaration forms of imported furniture are all stamped with the seal of Zheng Hui, the customs declarant of "Three Links", and Wang Peiqiong knows that Zheng Hui is not a customs declarant of "Three Links". The above-mentioned relevant customs import tariff payment book was also produced or audited by Wang Peiqiong. From Tang Jian to the trial, he confessed that Wang Peiqiong * * * conspired to participate in the above-mentioned smuggling, which was mutually confirmed with Zhang's confession after the case, confirming that Wang Peiqiong not only knew that Tang Jian and Zhang forged customs declaration documents to evade the tax payable, but also identified Wang Peiqiong's behavior of lying about the name of the goods and concealing the tax. Wang Peiqiong used his position to conduct price review and make the documents pass the customs. This proves that Wang Peiqiong not only has the objective behavior of participating in smuggling crimes, but also has the subjective intention of participating in smuggling crimes. At the beginning of the case, Tang Jian didn't confess to Wang Peiqiong and Zhang, which is not contradictory to the defense of Wang and Zhang's crimes in the original trial. Although Zhang denied that Wang Peiqiong was involved in smuggling during the trial and argued that Zhang's previous confession was induced by investigators and prosecutors, Zhang, as a highly educated person, not only confirmed his original confession with Tang Jian's confession, but also confessed that Wang Peiqiong knew and participated in many plots and even details of smuggling crimes, which was both logical and reasonable. On the contrary, Zhang's confession of this paragraph in the trial process does not conform to the basic logical common sense. Without evidence to support it, our court naturally cannot accept it. To sum up, the court held that Wang Peiqiong's argument that she deliberately participated in the smuggling crime after the incident lacked factual basis. The public prosecution agency accused the defendant Wang Peiqiong of participating in the smuggling of Tang Jian and Zhang and evading the tax payable of RMB 6,543,800+0.05 million. The basic facts are clear and the basic evidence is sufficient. Defender's argument that Wang Peiqiong does not constitute the crime of smuggling ordinary goods is insufficient and cannot be established. The fact that the public prosecutor accused Wang Peiqiong of smuggling ordinary goods was established, and our court also confirmed it.
Article 153, paragraph 1 (1) of the Criminal Law stipulates that whoever smuggles goods and articles and evades the tax payable of more than 500,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than one time but not more than five times the tax payable, or his property shall be confiscated. Tang Jian, Zhang and Wang Peiqiong * * * smuggled ordinary goods and evaded the tax payable totaling RMB 65,438+RMB 0.05 million, and were punished in accordance with the above provisions. After the incident, the customs recovered most of the tax evaded from the relevant parties, which did not affect the determination of the crime amount of the three defendants.
Defendant Zhang helped the enterprise evade the tax payable and obtained illegal benefits from it. However, the public prosecution agency did not accuse the case of a unit crime, and Zhang was not the person in charge of the unit involved and other directly responsible personnel. Therefore, the defender's opinion that Zhang is the other person who is directly responsible for the unit crime and is punished according to the provisions of the second paragraph of Article 153 of the Criminal Law is not based on sufficient facts and laws, and this court will not adopt it.
Article 411th of the Criminal Law stipulates that any customs officer who engages in malpractices for personal gain and indulges in smuggling, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years. In this case, Wang Peiqiong not only indulged herself in knowing that it was smuggling without being investigated, but also provided Tang Jian and Zhang with the names of goods that might be underreported or tax evaded, so that Zhang could forge customs declaration documents accordingly, thus underreporting and tax evasion. Therefore, Wang Peiqiong's behavior is not only to indulge in smuggling, but also to participate in smuggling, and should be punished as the crime of smuggling ordinary goods.
Article 26 of the Criminal Law stipulates that those who organize and lead a criminal group to carry out criminal activities or play a major role in joint crimes are the principal offenders. Article 27 of the Criminal Law stipulates that an accomplice plays a secondary or auxiliary role in the same crime. An accessory shall be given a lighter, mitigated or exempted punishment. In this case, the defendant, Tang Jian, first started from smuggling, actively wooed Zhang and Wang Peiqiong to participate in the * * * accomplice crime, played a major role in the * * * accomplice crime, and was the principal offender. Defendant Zhang took an active part in smuggling crimes and forged customs declarations, which also played a major role in accomplices and was the principal offender. Defendant Wang Peiqiong was lured to participate in the smuggling crime, provided the name of the goods with low tax reporting, indulged in smuggling, played a secondary role in the accomplice crime and was an accomplice. According to the specific circumstances of this case, the punishment may be mitigated.
The public prosecution agency determined that Tang Jian's voluntary confession of the smuggling crime that the investigation agency has not yet mastered belongs to surrender. The defender has no objection to the public prosecution agency's belief that Tang Jian surrendered himself. Our hospital found through trial that after being taken compulsory measures for accepting bribes, Tang Jian truthfully confessed the facts of smuggling crimes that the investigation organ has not yet mastered. According to the provisions of Article 67 of the Criminal Law, surrender can reduce punishment.
Second, about the crime of accepting bribes.
The indictment alleges that from March 1997 to March 10, Tang Jian took advantage of his position to accept bribes from Liu for many times, including 90,000 yuan in cash, 50,000 yuan in checks and a set of stereos worth 218,000 yuan, with a total value of RMB16,000 yuan. From 1997 to 65438+February to 1998, Tang Jian took bribes from Ye Ming twice, totaling RMB 30,000.
In view of the above facts, the public prosecution agency read out the written testimony of Liu, Tian Wei, Wang Shusong, Tang, Gui and other witnesses who did not appear in court, read out Tang Jian's work certificate, the appraisal conclusion about the stereo, the customs' tax payment certificate for the vehicles involved, and produced Tang Jian's inspection records for the imported vehicles involved.
During the trial, the defendant Tang Jian and his defender had no objection to the facts, evidence and charges of bribery accused by the public prosecution agency. However, Tang Jian offered to accept Liu's bribe of 90,000 yuan, of which 30,000 yuan was to return Tang Jian's loan. Liu gave me a set of stereo, which I bought on behalf of Liu. Because Liu did not provide the invoice, Tang Jian did not pay. The defender also suggested that Tang Jian accepted Liu's check of 50,000 yuan, and because the existing evidence could not prove whether Liu cashed the check, this part could not be included in the amount of bribes.
It was found through trial that:
1March 1997 to1March 1997, Tang Jian took advantage of his position as an inspector in the customs inspection department of Shanghai Waigaoqiao Free Trade Zone and accepted the request of Liu, deputy general manager of Shanghai Riyueshanfeng International Trade Co., Ltd. (handled separately). He knew in advance that the agent of the company was BMW 528I, but the inspection certificate provided by the company was BMW 5 18I. Eighty BMW 528I vehicles passed the inspection with 5 18I model, resulting in tax evasion totaling RMB16 million yuan (recovered after the incident). During this period, Tang Jian repeatedly accepted bribes from Liu totaling RMB 60,000 in cash, RMB 50,000 in checks, and a set of stereos with a value of RMB 265,438+RMB 8,000, with a total value of RMB 6,543.8+RMB 3,200. 1997 to 65438+from February to1April 1998, Tang Jian took advantage of the above-mentioned position and accepted the request of Ye Ming, a salesman of Jaguar (International) Development Co., Ltd. in Shanghai, and still used BMW 565438+ for four BMWs 428I, Chrysler Cirrus and Toyota Camry. During this period, Tang Jian received RMB30,000 from Ye Ming twice.
The facts in this section are proved as follows: (1) The customs inspection records of the above-mentioned imported cars are all signed by customs inspector Tang Jian. (2) The written testimony of Wang Shusong, a customs officer, confirmed the inspection process of imported cars involved in Tang Jian's case. (3) The written testimony of Liu, Liu and Liu confirmed the fact of bribing Tang Jian. (4) Customs' certificate on the declaration and tax recovery of the above-mentioned imported cars, confirming the declaration and tax recovery of the above-mentioned 84 imported cars. (5) The written testimony of the witness Tang proves that he helped Tang Jian cash a blank check with a face value of 50,000 yuan around1April, 997, and handed over 50,000 yuan in cash to Tang Jian. (6) A set of stereos obtained after the crime and the appraisal conclusion prove that Wei Liu Tangjian purchased stereos worth 265,438 yuan+800,000 yuan. All the above evidences have been cross-examined by the court and become the basis for ascertaining the facts in this section.
The court held that the basic facts of the public prosecution agency accusing Tang Jian of accepting bribes were clear, the basic evidence was true, and the defendant also confessed. Defender has no objection to the above facts, evidence and allegations of Tang Jian. The fact that the public prosecutor accused Tang Jian of taking bribes and the charges were established, which was confirmed by our court. Tang Jian entrusted Liu to buy a set of stereo. Tang Jian knew that the domestic price of this stereo was about 20 thousand yuan, and Liu did not provide the invoice, which could not be the reason why Tang Jian did not pay. In addition, in more than a year, Tang Jian has repeatedly accepted bribes from Liu in RMB, and never paid Liu for the stereo. Liu Huanming did say that these stereos were for Tang Jian. Therefore, the public prosecution agency accused Tang Jian of taking bribes for a set of stereos, which is based on facts and should be recognized. Tang Jian argued in court that he did not accept the RMB 30,000 transferred by Liu. After investigation, Tang Jian has always confessed to accepting the 30,000 yuan, and his defense in court is not credible. However, considering that Xu Xiaoming has no evidence to prove it, we think that the fact that Tang Jian took bribes in this section can be dismissed.
Third, about the crime of illegal business operation.
The indictment alleges that from the beginning of 1997 to the beginning of 1998, Zhang and Wang Peiqiong imported seven registration forms for the sale of mechanical and electrical products, making a profit of RMB 2 1000. Wang Peiqiong and Zhang sold two aluminum profiles import registration certificates at a price of 5,000 yuan. After that, Wang Peiqiong rewarded He Guoguang with 3000 yuan.
In view of the above facts, the public prosecution agency read the written testimony of witnesses who did not appear in court, such as He Guoguang, Xie Wenjun, Sun Yiyong, Jiang, and produced the above-mentioned mechanical and electrical products import registration form, aluminum profile specific commodity import registration certificate, charging financial vouchers and other documentary evidence.
During the trial, Zhang had no objection to the facts and evidence accused by the public prosecution agency, but argued that Wang Peiqiong did not know that Zhang profited from it. During the trial, Wang Peiqiong had no objection to the fact of providing the Import Registration Form and the Import Registration Certificate, but argued that she had no intention or behavior of reselling.
Zhang's defender suggested that the Measures for the Administration of Import Certificates of Mechanical and Electrical Equipment in Shanghai do not have the effect of administrative regulations, and the relevant registration forms provided by Zhang are not clearly marked, so Zhang's behavior does not constitute the crime of illegal business operation. Wang Peiqiong's defender suggested that Wang Peiqiong did not intentionally resell it and did not constitute the crime of illegal business operation.
It was found through trial that:
At the beginning of 1997 to 1998, the defendant Zhang was entrusted by the salesman of Dajia Industrial Company, and through Wang Peiqiong, he successively obtained seven import registration forms of mechanical and electrical products stamped with the special seal for the import of mechanical and electrical products in Shanghai, and submitted them to Feng Xuan for the import declaration and registration procedures of mechanical and electrical products such as inkjet printers, cables and program-controlled switches. Feng Xuan paid 3000 yuan each. During this period, Wang Peiqiong provided Zheng Hui, manager of Shanghai Paihuang International Trade Company, with two import registration certificates of specific commodities stamped with the special seal of Shanghai Planning Commission, which were obtained from He Guoguang for the import declaration registration of aluminum profiles, and accepted RMB 5,000 from Zheng Hui. Later, Wang Peiqiong gave He Guoguang RMB 3,000 as a reward.
This section contains (1) the above Import Registration Form and Import Registration Certificate, which prove that He Guoguang provided it to Wang Peiqiong and Zhang, and it was used for import declaration registration. (2) The written testimony of witnesses He Guoguang and Xie Wenjun respectively confirmed the fact that Wang Peiqiong and Zhang were provided with the import registration form and the import registration certificate and paid the relevant fees. (3) Relevant property vouchers and handwriting appraisal conclusions confirm the fact that Zhang collects fees in the name of agency fees and service fees. The above evidence, after cross-examination by the court, becomes the basis for ascertaining the facts in this section.
We believe that Zhang knowingly provided the Import Registration Form of Mechanical and Electrical Products stamped with the special seal for the import of mechanical and electrical products in Shanghai, each of which earned 3,000 yuan, and still took the initiative to obtain 7 copies of the above-mentioned import registration forms through Wang Peiqiong, earning 265,438 yuan+0,000 yuan. Considering that Zhang and Wang Peiqiong's alleged behavior does not fully meet the constitutive requirements of the crime of illegal business operation, they cannot be punished as the crime of illegal business operation.
To sum up, we believe that the defendants Tang Jian and Wang Peiqiong, as national customs officers, should be strict in self-discipline, love their jobs and abide by laws and regulations. However, Tang Jian and Wang Peiqiong ignored the national laws and customs work discipline, colluded with the defendant Zhang, and helped others smuggle by criminal means such as underreporting customs duties and evading taxes payable, so as to obtain illegal benefits from them. The result will inevitably be severely punished by law. This is entirely their own fault and should be punished. The defendant Tang Jian also committed the crime of accepting bribes and should be punished according to law. Accordingly, in order to strictly abide by the law and ensure the normal working order of state organs and society, according to the facts, nature, circumstances and the degree of harm to society committed by the defendant in this case, and in accordance with the provisions of Article 153, Paragraph 1 (1) and Paragraph 3, Article 385, Paragraph 1, Article 386 and Article 383, Paragraph 1 (1) of the Criminal Law of People's Republic of China (PRC),
1. Defendant Tang Jian was convicted of smuggling ordinary goods, sentenced to eight years in prison, deprived of political rights for two years, and confiscated personal property of RMB 20,000; He was convicted of accepting bribes and sentenced to fixed-term imprisonment of 10 year, deprived of political rights for 2 years, and decided to execute fixed-term imprisonment of 17 year (the sentence is counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of fixed-term imprisonment, that is, from April 23 to April 22 of 1998, deprivation of political rights for four years and confiscation of personal property.
2. Defendant Zhang committed the crime of smuggling ordinary goods and was sentenced to 10 years' imprisonment, counting from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of fixed-term imprisonment (i.e.1August 28, 1998 to August 27, 2008), deprivation of political rights for two years and confiscation of personal property.
3. Defendant Wang Peiqiong committed the crime of smuggling ordinary goods and was sentenced to five years' imprisonment. In case of detention before the execution of the judgment, one day of detention shall be reduced to one day of fixed-term imprisonment, that is, from 1999 10 10 to 200410/0 12).
Four, the defendant's illegal income and personal property used for the crime shall be recovered.
If you refuse to accept this judgment, you can appeal to the Shanghai Higher People's Court through our court or directly within ten days from the second day of receiving the judgment. If a written appeal is filed, an original and a copy of the appeal shall be submitted.
Presiding judge yuan
Acting judge sun
Acting Judge Xu Cuiping
Clerk Hu Hongchun.
Wei Qing
Comment and analysis
This is a case of smuggling ordinary goods, accepting bribes and illegal business operations made by an intermediate people's court in a criminal judgment. The production of this judgment conforms to the basic requirements of the revised Style Specification and has the following characteristics:
First of all, the accused crimes are described by means of prosecution, defense and trial.
The procuratorate accused the defendants Tang Jian, Zhang and Wang Peiqiong of smuggling ordinary goods and articles. Tang Jian and Wang Peiqiong were also guilty of accepting bribes and illegal business operations respectively. These three charges will be charged in the judgment by way of prosecution, defense and trial. It is quite innovative to describe and demonstrate the charges accused by the procuratorate, the defendants' defense and defenders' defense opinions, the facts and evidence found in the trial, whether the actions of the three defendants constitute a crime, what crimes they committed, the role of each defendant in the same crime, and whether the accusations of the procuratorate and the defendants' defense are established.
Second, analyze and authenticate the facts and evidence of the differences between the prosecution and the defense.
Whether the defendant Wang Peiqiong participated in the crime of smuggling is the focus of controversy between the prosecution and the defense. The judgment pointed out that according to the results of cross-examination in court, it can be concluded that Zhang's act of forging documents to evade tax payable was recognized by Wang Peiqiong. The special payment form for customs import duties is also made or rechecked by Wang. The confessions of Tang Jian and Zhang confirmed that Wang Peiqiong not only knew that Tang and Zhang forged customs declarations to avoid paying taxes, but also took advantage of his position to facilitate Wang's verification of the name of the goods and declaration of tax. This proves that Wang not only has the objective behavior of participating in smuggling crimes, but also has the subjective intention of participating in smuggling crimes. Therefore, Wang Peiqiong denied that she was involved in smuggling crimes and lacked factual basis.
Three. Answered the opinions of both the prosecution and the defense on the application of the law one by one.
The judgments put forward by the procuratorate and the defendants and their defenders think that since most of the tax evaded has been recovered by the customs, will it affect the determination of the crime amount of the three defendants? How to characterize Wang Peiqiong's participation in smuggling; Whether Zhang's behavior constitutes a unit crime; Whether Zhang and Wang Peiqiong's behavior constitutes the crime of illegal business operation has made a clear answer. For example, there is insufficient evidence to accuse Wang Peiqiong of Wang Peiqiong's defender participating in smuggling crimes; Even if Wang is found to be involved in this crime, it can only constitute the view of indulgence in smuggling. According to the verdict, Wang Peiqiong not only indulged in smuggling, but also provided Tang Jian and Zhang with the names of goods that could be underreported and evaded taxes, so that they could forge customs declaration documents accordingly and underreported and evaded taxes. Therefore, Wang's behavior is not only to indulge in smuggling, but also to participate in smuggling, and should be convicted and punished for smuggling ordinary goods. Another example is the prosecution's accusation that Zhang and Wang Peiqiong made a profit of 2 1000 yuan by selling the import registration form of mechanical and electrical products, which constituted the crime of illegal business operation; Defender of the defendant Zhang suggested that Zhang's behavior did not constitute the crime of illegal business operation, and Wang Peiqiong and his defender put forward the defense and defense opinions of intentional and behavior without reselling. The judgment held that it was clear that Zhang knew that he had provided the Import Registration Form of Mechanical and Electrical Products with the special seal for the import of mechanical and electrical products in Shanghai, each of which could get RMB 3,000, but he still took the initiative to obtain the above-mentioned seven Import Registration Forms through Wang Peiqiong and handed them over. "Considering that Zhang and Wang Peiqiong's alleged acts do not fully meet the constitutive requirements of the crime of illegal business operation, they cannot be punished as the crime of illegal business operation". However, it will be clearer and more convincing if we further analyze and demonstrate why Zhang and Wang's behavior does not fully meet the constitutive requirements of the crime of illegal business operation from the theory of crime constitution.
The citation of some legal provisions is inaccurate. Where there are paragraphs and items, they should be quoted. For example, the surrender stipulated in Article 67 of the Criminal Law is divided into two sections. The first section is about the concept and punishment principle of voluntary surrender, and the second section is about the stipulation that "after compulsory measures are taken, criminal suspects, defendants and criminals serving sentences will be regarded as voluntary surrender if they truthfully confess other crimes that have not been mastered by judicial organs". Therefore, Article 67 of the Criminal Law should not be quoted in general, but in the second paragraph of Article 67 of the Criminal Law. For another example, Article 26 of the Criminal Law is divided into four paragraphs. The first paragraph is the definition of the principal offender. There is no doubt that the legal provisions cited in the part of "the court thinks" are correct, but when explaining what is the principal offender, only Article 26 of the Criminal Law is cited, but the first paragraph of Article 26 is not specifically cited.
According to the revised style, the sentence "reviewed by the collegial panel and submitted to the judicial committee for decision" can be deleted.