Author: Yang Linlin, a lawyer at Beijing Yingke (Guangzhou) Law Firm, focusing on criminal case defense.
Article 205-1 of the Criminal Law does not clarify the mode of conduct of the crime of false invoicing, and in practice, there are different views on whether the false invoicing in the crime of false invoicing can be understood in the same way as the false invoicing behavior, and it is specific to the act of the recipient of the invoice to let others falsely issue ordinary invoices for itself, which is related to the determination of crime and non-crime.
There are two different opinions on the determination of allowing others to falsely issue (maliciously accept) ordinary invoices for themselves:
One point of view is that the false issuance of false invoices only refers to the act of false invoicing for others and for oneself, and the provisions of the third paragraph of Article 205 of the Criminal Law on the act of "false invoicing" are not automatically applicable to the crime of false invoicing, and the false invoicing used for the crime of fraudulent export tax rebates and tax deductions stipulates that "let others make false invoices for themselves" does not belong to the false issuance of invoices for the crime of false invoicing, and does not constitute the crime of false invoicing.
The reason is that Article 205 of the Criminal Law clearly states that "false invoices or other invoices used to fraudulently obtain export tax rebates or tax deductions refer to one of the acts of falsely issuing invoices for others, for oneself, allowing others to falsely open for oneself, or introducing others to falsely issue invoices", while the provisions of Article 205-1 of the Criminal Law do not clarify that the mode of conduct of the crime of false invoicing includes the act of allowing others to open falsely for oneself or introducing others to falsely issue invoices.
Therefore, the act of the drawee allowing others to falsely issue (maliciously accept) ordinary invoices for itself should not constitute the crime of false invoicing.
Another view is that the act of false invoicing includes not only the specific act of making false invoices for others and oneself, but also the act of allowing others to make false invoices for oneself. The definition of "false opening" in paragraph 3 of Criminal Law article 205 is also applicable to the determination of false opening in the crime of false invoicing.
The reason is that the crime of false invoicing is a new crime added to the Criminal Law Amendment (VIII), which is a new provision for Article 205, and is an integral part of Article 205 as Article 205-1 of the Criminal Law. The content of "false issuance of invoices other than those provided for in Article 205 of this Law" as provided for in "one" clarifies the target of the crime of false invoicing. There is no need to repeat the provisions of the Criminal Law after the same article of the same law has provided for the act of "false opening". The provisions of Article 205 on false opening are naturally applicable to the act of false opening referred to by "one", that is, allowing others to make false openings for themselves is one of the manifestations of the objective aspect of the crime.
Therefore, the act of allowing others to falsely issue (maliciously accept) ordinary invoices for itself constitutes the crime of false invoicing.
In the author's opinion, the first view is reasonable.
Paragraph 3 of Criminal Law Article 205 lists four types of false openings for the crime of false opening, that is, making false openings for others, making false openings for oneself, allowing others to make false openings for oneself, and introducing others to make false openings. In essence, the latter two acts of false opening should be accomplices to the act of false opening, allowing others to make false openings for themselves is an act of instigation, and introducing others to make a false opening is an act of aiding.
Article 205-1 of the Criminal Law does not stipulate that "allowing others to make false openings for themselves" constitutes a crime, and the false openings in this article should only refer to the act of making false openings itself, that is, making false openings for others or for oneself. Compared with the crime of false invoicing provided for in Article 205-1, the crime of false invoicing for fraudulent export tax rebates and tax deductions provided for in Article 205 is a felony, and the Criminal Law does not make similar expanded provisions on the false issuance of false invoices for misdemeanors. Based on the relationship between ordinary invoices and VAT invoices, the general provisions can be applied to the special, but not the other way around. The exclusion of the act of "allowing others to make false statements for oneself or introducing others to make false statements" is in line with the principle of legality and modesty of the Criminal Law.