Lawyer Li **: Executive Director of Guangqiang Law Firm; Director of the Center for Economic Defense; Lead defense counsel in pyramid scheme cases.
Wu Dan is a researcher at the Guangqiang Economic Crime Defense and Research Center.
Keywords: smuggling, goods, articles, tax payable, reasonable quantity.
Among the smuggling crimes, the crime of smuggling ordinary goods and articles is the most frequent. Unlike those crimes that specifically regulate the entry or exit of goods, the crime of smuggling ordinary goods and articles is mostly regulated by cigarettes, alcohol, frozen products, cosmetics, milk powder, digital products, gold and silver jewelry and other daily necessities. Such daily necessities have a wide coverage, a large number of consumption, and a high frequency of customs clearance, and the slightest carelessness may turn into smuggling, or even touch the criminal law.
As an economic crime, the crime of smuggling infringes on the national foreign trade management system, which prevents the evasion of customs duties and prohibits or restricts the import and export of goods through the supervision and control of imported and exported materials. As the organ that maintains the national foreign trade management system, the most important objects of customs supervision are "goods" and "articles".
Some people will say that goods and items seem to have similar meanings, and it is necessary to divide them so clearly?
Of course it is necessary. Especially in the crime of smuggling, accurately determining whether the materials involved in the case are goods or articles plays a crucial role in the conviction and sentencing of the entire case.
This article will focus on how to distinguish between "goods" and "articles", the significance of the distinction between the two in customs and judicial practice, and their impact on the conviction and sentencing of criminal smuggling cases.
The distinction between "goods" and "articles".
According to the Regulations on the Implementation of Customs Administrative Penalties (hereinafter referred to as the "Customs Penalty Regulations"), "articles" refer to the baggage and articles that are transported or carried by individuals into and out of the country, and articles that are mailed into and out of the country, including currency, gold and silver, etc. If the quantity exceeds the reasonable amount for self-use, it shall be regarded as "goods".
In essence, "goods" are used for sale, focusing on economic value, while "things" are used directly and focusing on use value. From the perspective of customs supervision, the key to distinguishing the two is also this, that is, whether it has the best attributes. Of course, this criterion is still too abstract, and in practice, it is easy to implement the basis, that is, to examine whether the quantity of imported and exported goods is within the scope of "self-use and reasonable quantity".
What is a reasonable amount for personal use?
According to the Customs Penalty Regulations, "self-use" refers to the passenger's or recipient's own use, gifting to relatives and friends, rather than for ** or renting. "Reasonable quantity" means the normal quantity determined by Customs based on the circumstances of the passenger or recipient, the purpose of performance and the length of stay. In fact, even if the items carried by individual passengers enter the country really exceed the "prescribed quantity", as long as they can be proved to be within the "reasonable quantity", they are generally still regarded as "articles"; However, if the customs deems that it exceeds the "reasonable quantity", it will be regarded as "goods".
In this regard, paragraph 3 of Article 57 of the Regulations on Import and Export Tariffs also clarifies that imported goods exceeding a reasonable quantity for self-use shall go through the relevant formalities in accordance with the law in accordance with the imported goods.
In short, in practice, the basis of "self-use and reasonable quantity" is used to determine whether an inbound or outbound article is a "goods" or an "article".
So, what is the significance of distinguishing between the two?
The meaning of the distinction between "goods" and "articles".
(1) Customs supervision and taxation
From the perspective of foreign trade supervision, there is a big difference between goods and articles in terms of customs supervision and tax collection.
In customs supervision, for the import and export of "goods", it will be required to submit various license documents that meet the regulatory conditions, and if it is frozen products, dairy products, etc., it is also necessary to carry out additional inspection and quarantine; For the "goods" entering and leaving the country, especially the daily necessities carried by individual passengers, there is basically no need for customs clearance documents.
Taking gold and silver and its products as an example, if they are imported in the name of goods, they need to submit a number of documents such as the import and export license of ** and ** products of the central bank, ** import and export application materials, and passengers carrying less than 50 grams of gold and silver and their products can go directly to the non-declaration channel according to the "article" without showing any supporting materials.
From a tax point of view, the basis and method of taxation of "goods" and "articles" are also different:
1.If the tax is levied on "goods", customs duties, value-added tax and excise tax are levied on them, and the total tax payable is the sum of customs duties, excise tax and value-added tax.
1) Tariffs. Customs duty payable (ad valorem) Duty paid** Tariff rate(According to the "Import and Export Tariff Rules").
Duty payable (ad valore) = quantity of goods Unit tariff
2) Consumption tax.
Consumption tax payable (ad valorem) Duty paid** + Actual customs duty) (1 Consumption tax rate) Consumption tax rate(According to the consumption tax items and tax rates table of the "Provisional Regulations on Consumption Tax").
Excise tax payable (ad hoc) = quantity of goods unit excise tax
3) VAT.
VAT payable = (Duty Paid** + Tariff + Consumption Tax) VAT rate(In accordance with the Provisional Regulations on Value Added Tax).
2.If the case is taxed on "goods", the import tax on imported goods will be uniformly levied, also known as personal postal articles tax.
Import tax payable = Duty paid** Import tax rate (query according to the "Import Tax Rate Table for Imported Goods").
It can be seen that the types of taxes and the way of calculating taxes on goods and articles are completely different, and the final amount of tax payable will also be different. This difference in the amount of tax is reflected in the criminal case of smuggling, that is, whether the party is guilty or not and the severity of the punishment for the crime.
(2) Judicial practice
According to Article 153 of the Criminal Law, those who smuggle ordinary goods and articles shall be punished separately according to the severity of the circumstances. The "severity of the circumstances" here mainly refers to the amount of tax payable for smuggling and evasion, of which the tax amount is relatively large, the sentence is not more than three years imprisonment or short-term detention, the tax amount is huge, the sentence is three to ten years' imprisonment, and the tax amount is particularly huge, the sentence is not less than ten years or life imprisonment; The combined fine is between 1 and 5 times the amount of tax payable.
Article 16 of the Interpretations of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Smuggling stipulates that under normal circumstances, the standards for the tax payable by natural persons for smuggling and evasion are relatively large, huge, and especially huge, respectively, of 10.5 million yuan, 502.5 million yuan, and more than 2.5 million yuan; Where a unit smuggles and evades the amount of tax payable, the standard of tax is twice that of a natural person, which is 201 million yuan, 1005 million yuan, and more than 5 million yuan respectively.
As mentioned above, in cases involving the crime of smuggling ordinary goods and articles, evasion of the tax payable is very important to the conviction and sentencing of the parties, not only related to the crime or not, but also to determine the severity of the actual punishment and the amount of fine.
The impact of the distinction between "goods" and "articles" on criminal smuggling cases
For example, A entered the country from Port L and was spot-checked by the customs and found that there were 10 undeclared gold coins for the Year of the Dragon in his luggage at any time. After identification, the commemorative silver coin belongs to the first commemorative coin, each weighing 100 grams, and the taxable unit price at the time of the case was 75,000 yuan.
According to Order No. 43 of the General Administration of Customs, ordinary precious metals such as gold and silver and their products are "restricted from leaving the country", and according to the Regulations on Customs Clearance of Inbound and Outbound Passengers (Order No. 198 of the General Administration of Customs), individual passengers carrying more than 50 grams of gold and silver products when entering the country must declare to the Customs.
The total weight of gold coins carried by a person reached 1,000 grams, which far exceeded the required amount of the customs. Although A did not take the initiative to declare and could not provide legal certificates or licensing documents, he did not hide or conceal the batch of gold coins, so it cannot be directly inferred that A subjectively had the intention to carry out smuggling. At this time, the key to the verdict is the amount of tax payable on the batch of gold coins.
The smuggled goods involved in the case are specific goods or articles that are targeted by acts that violate customs supervision regulations, and are called "illegal goods and articles". According to Article 29 of the Measures of the Customs for Calculating the Value of Goods and Articles in Cases of Violation of Customs Supervision Regulations, the value of illegal goods shall be calculated and verified according to the sum of the duty-paid**, import and export duties, and customs tax collection in the import link of the illegal goods; The value of illegal goods is calculated according to the sum of the duty-paid** and import duty of illegal goods.
1.If the tax is calculated on the basis of "goods", the tax payable on the batch of gold coins is calculated as follows:
In the Import and Export Tariff, commemorative gold coins can be taxed on either "collectibles" or "coins", but no matter what kind of tariff item they are classified into, the corresponding tariff is zero.
According to the consumption tax items and tax rates table of the Provisional Regulations on Consumption Tax, commemorative gold coins do not belong to the 14 types of taxable consumption tax items prescribed by law, so they are not subject to consumption tax.
According to Article 2 of the Provisional Regulations on Value Added Tax, the VAT on commemorative gold coins is 17%.
To sum up, the tax payable under the standard of "goods" for this batch of gold coins is 0 + 0 + 75,000 10 17% = 127,500 yuan, which has reached the standard for filing and prosecuting the crime of smuggling ordinary goods and articles, according to which A can be investigated for criminal responsibility.
2.If the tax is calculated on the basis of "articles", the tax payable on the batch of gold coins is calculated as follows:
According to the Import Tax Rate Table for Imported Articles, gold coins belong to the "gold and silver" in the first category of the tax, and the corresponding import tax rate is 13%.
Then, the import tax amount of the batch of gold coins is 75,000 10 13% = 97,500 yuan, which does not meet the criminalization standard of 100,000 yuan.
Conclusion
In the case of the crime of smuggling ordinary goods and articles, the characterization of the smuggled goods involved in the case as goods or articles determines different tax calculation standards, and then different tax payables will be obtained, and the difference in tax amount will not only affect the conviction and sentencing of the parties and the amount of fines, but sometimes even determine whether the parties constitute a crime.
It is worth noting that the current laws and regulations do not provide quantitative standards for "reasonable quantity", and customs officers have a certain degree of discretion. Therefore, in a criminal case, the defense lawyer should not only refer to the customs officer's determination of the smuggled goods, but also take the requirements of the criminal procedure for evidence as the criterion, and exhaust all methods to make substantive judgments on the evidence in the case, the subjective intention and objective behavior of the parties, so as to more accurately complete the characterization and strive for the best results for the parties.