Author: Li Guichao.
The friendship between China and Pakistan is evergreen, and there are many handsome young men in China who have gained love during their work and travel to Pakistan, which sounds very romantic and beautiful. In addition to this kind of beautiful encounter on the journey, there is also a kind of transnational matchmaking, especially in Shandong, Henan and other places due to the imbalance between men and women, some marriage agencies introduce Chinese guys to Pakistan for blind dates and charge part of the referral fee. Is it legal to organize others to go on a blind date in Pakistan? Is it a crime? The Notice of the General Office of the People's Republic of China on Strengthening the Administration of Foreign-related Marriage Introductions stipulates that "the establishment of foreign-related marriage agencies is strictly prohibited", and such acts will be deemed to be in violation of national mandatory regulations and are invalid. At the same time, the lawyer inquired on the judgment document network and found that there was a criminal verdict in the current verdict for organizing men to go to Pakistan for a blind date, and he was convicted and punished for organizing others to illegally cross the border, mainly in Heze City, Shandong Province ["Thousands of purples, thousands of reds, a little green" to understand].
The lawyer happened to ** a case of organizing a man to go to Pakistan on a blind date, and the first instance of this case was sentenced to four years and six months in prison for organizing others to illegally cross the border, and the lawyer was already in the second instance when he intervened. The court of first instance held that "the defendant violated the normal order of the state's management of the national border and organized others to illegally cross the national border in large numbers, which constituted the crime of organizing others to illegally cross the national border." In particular, it violates Article 6, Paragraph 1 of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Obstructing National (Border) Border Management", which stipulates that "entering or exiting the country (border) by means of false entry and exit reasons, concealment of true identity, fraudulent use of other people's identity documents, etc."
According to the lawyer, the premise of the crime of organizing others to illegally cross the border is that the organized person's way of leaving the country is an act of illegal crossing, and the basis for the first-instance verdict of conviction is the judicial interpretation, which holds that there are three conditions for illegally crossing the border: false reasons for entering and exiting the country, carrying entry and exit documents obtained by fraud for false reasons, and therefore entering and exiting the Chinese border. To figure out whether the way a blind date man goes to Pakistan is to sneak across the border, you need to understand several concepts:
a) Passport. According to Article 2 of the Passport Law of the People's Republic of China, "the passport of the People's Republic of China is a document for citizens of the People's Republic of China to enter and exit the country and prove their nationality and identity abroad", and according to Article 4 of the Administrative Measures of the People's Republic of China for the Issuance of Ordinary Passports and Exit-Entry Permits, "citizens applying for ordinary passports shall submit their applications to the exit-entry administration of the local people's ** public security organs at or above the county level where their household registration is located, and submit the following true and valid materials: (1) recent barehead** One and the completed Application Form for Chinese Citizens Going Abroad (Outside the Territory) for Private Purposes (hereinafter referred to as the Application Form); (2) Resident ID card and household registration booklet and photocopies thereof; During the period of collection, replacement and replacement of resident identity card, temporary resident identity card and household registration booklet and photocopies may be submitted; (3) Citizens under the age of 16 shall be accompanied by their guardians, and submit the opinions issued by their guardians agreeing to leave the country, the guardian's resident identity card or household registration booklet, passport and a copy thereof; (4) State functionaries shall, in accordance with relevant provisions, submit a certificate of consent to leave the country issued by the work unit to which they belong or the competent unit at a higher level after examination and approval in accordance with the personnel management authority; (5) Other materials required to be submitted by the exit-entry administration of the provincial-level local people's ** public security organs with approval by the exit-entry administration of the Ministry of Public Security. ”
In this case, the blind date man in the first country provided the above materials by himself, and did not have any fraud on the appeal materials, especially in the attached file "The Exit and Entry Administration Detachment of the Heze Municipal Public Security Bureau provides information on the issuance of exit documents for mainland residents for private purposes and the application form for entry and exit documents of Chinese citizens", Han, Zhang1, Li, Wang, Liu, Chen, Chen, Zhu, Ren, Liu, Zhu, Zhang2, Zhang3, and Fan did not check or fill in any content in the passport application form. In other words, the blind date man did not commit any fraud in the application for the passport, and there is no evidence to prove that the issuing authority of the passport was issued based on a misunderstanding.
Passports are entry and exit documents stipulated in the Criminal Law, but the evidence in the case proves that the passports carried by the man involved in the case when he went abroad were not obtained by fraud, and the key to the crime of organizing others to illegally cross the border is the visa issue, and it is impossible to apply for a passport.
b) Visa. A visa is a kind of permit issued by the ** authority of a country in accordance with the laws of the country for foreigners who apply to enter, exit or pass through the country, that is to say, the visa is only for foreign citizens. Generally speaking, Chinese citizens need to obtain a visa from the embassy of other countries in China before they can enter or leave the country, but in this case, Chinese citizens do not need to go through the visa of the Pakistani embassy in China, but Pakistan will apply for visas for Chinese citizens after arriving in the capital of Pakistan. In other words, Chinese citizens do not have any visa information in their passports when they leave the Chinese Customs. The records of Zhang X 1, Zhang X 2, Zhang X 3, Li X 1, Li X 2, Ren X 1, Zhang X 4, Zhang X 5, Fan X and Han X in the file can also prove that the visa was made in Islamabad, Pakistan, and has nothing to do with China, and the visa was handled by the man who went abroad on a blind date himself, and was not handled by the appellant as determined by the first-instance judgment.
According to Article 12 of the Exit-Entry Administration Law, "Chinese citizens are not allowed to leave the country under any of the following circumstances: (1) they do not hold valid exit/entry documents or refuse or evade border inspection; (2) They have been sentenced to a criminal punishment that has not yet been served or are defendants or criminal suspects in a criminal case; (3) There are unresolved civil cases and the people's court decides not to allow them to leave the country; (4) Those who have received criminal punishment for obstructing national (border) border management, or who have been repatriated by other countries or regions for illegally leaving the country, residing in the country, or illegally employing them, and have not yet completed the prescribed number of years for which they are not allowed to leave the country; (5) It may endanger the interests and interests of the relevant competent departments, and the relevant competent departments decide not to allow them to leave the country; (6) Other circumstances in which laws or administrative regulations provide that leave the country is not permitted. "The man who went abroad in this case does not have any of the above-mentioned circumstances and can leave the country in accordance with the law.
Response of the National Migration Administration on 26 September 2019 (
The visa is a national sovereignty, and Chinese citizens arriving in Thailand are subject to the review of their border inspection (immigration) department, and may not be allowed to enter the country if they do not meet the conditions for visa on arrival or have other circumstances that prevent them from entering the country." In the same way, for the visa on arrival to Pakistan, it is Pakistan's decision on whether to allow Chinese citizens to enter the country, which is the sovereignty of Pakistan, and the scope of the penal power cannot exceed the scope of sovereignty, and the act of entering Pakistan has nothing to do with China's penal power.
The exit-entry border inspection stations set up by China at ports, air stations, stations, border passages and other ports open to the outside world are only responsible for carrying out border inspections on the persons leaving and entering the country and their luggage, transport vehicles and the goods they carry, and have no right to apply for entry and exit documents. How to characterize the falsification of entry records by border inspection personnel]. That is to say, when Chinese citizens leave the Urumqi Customs, the routine inspection work of the customs officers is to check the entry and exit documents, not to take out the entry documents by fraud at this link, let alone to leave the country with the exit and entry documents obtained by fraud.
3) Business invitation letter.
According to the information provided by the China Consular Service Network, "ordinary passport holders applying for a Pakistani business visa should provide an invitation letter from the relevant Pakistani unit (company) and be stamped with a certification seal by the first-class industrial and commercial association of Pakistan", which is also the business invitation letter in this case. According to Criminal Trial Reference No. 1411: Zhang Yongli** Entry-Exit Document Case--- the standard of proof in the case was not lowered because the defendant pleaded guilty and accepted punishment, and the trial reference determined that the business invitation letter was not an entry-exit document. In other words, the blind date man in this case did not leave Urumqi by virtue of fraudulently obtained entry and exit documents.
The lawyer would like to make a summary here: Article 1 of the Law on the Administration of Exit and Entry stipulates that "this Law is enacted in order to standardize the administration of exit and entry, safeguard the sovereignty, security and social order of the People's Republic of China, and promote foreign exchanges and opening up to the outside world." That is to say, the object of the crime of organizing others to illegally cross the border is China's national (border) border management order, not the border order of other countries, which is a matter of territory and sovereignty between countries, and China's sovereignty cannot be extended to Islamabad, the capital of Pakistan. Article 2 of the Law on the Administration of Exit and Entry stipulates that "this Law shall apply to the administration of the exit and entry of Chinese citizens, the entry and exit of foreigners, the stay and residence of foreigners in China, and the border inspection of the exit and entry of transport vehicles." "It can also prove that China's criminal law cannot protect the borders of other countries, so this crime is aimed at the illegal exit of Chinese citizens or the illegal entry of foreign citizens. According to the provisions of the People's Judicial Case - Organizing the Crime of Illegally Crossing the National (Border) Border by Repeatedly Receiving Foreign Smugglers in China, "when the Interpretation was formulated, it focused on the act of organizing the illegal crossing of China's borders, and mainly targeted Chinese citizens, but it does not deny the act of organizing illegal crossings of China's borders", which can also confirm this view.
At the same time, p375 of the "Training Course for Judges of Basic People's Courts" also states that "the crime of obstructing national (border) border management as provided for in China's criminal law can only be targeted at China's national (border) border, and cannot include the national (border) territory of other countries." China has no obligation to protect the national (border) borders of other countries. If the national (border) borders of other countries are included in the scope of protection of China's criminal law, it will actually expand the scope of application of China's jurisdiction".
Based on this premise, this case needs to evaluate whether the blind date man's behavior of leaving the country from Urumqi was an act of illegally crossing the border, rather than evaluating the blind date man's behavior of applying for a visa to enter Pakistan in Islamabad. In this case, the blind date man could leave the country with a passport, a business invitation letter, and a plane ticket when he left Urumqi Customs, but the passport was not obtained on the basis of false reasons for leaving the country, and the passport was also blank, and the business invitation letter was not an entry and exit document, let alone an entry and exit document. Then, the way in which the blind date man leaves the country does not belong to the criminal act stipulated in the judicial interpretation. The way of leaving the country does not belong to illegally crossing the border, so the way of organizing them to go abroad does not constitute the crime of organizing others to illegally cross the border.
Life is precious, love is more valuable, if it is for freedom, both can be thrown away". Transnational love is beautiful, but there are criminal risks associated with running a transnational matchmaking. In particular, some judges of basic courts and municipal intermediate courts may have never been out of the country before hearing such cases, and it is difficult to clarify the concepts of passports, visas, entry cards, invitation letters, etc., as well as the links in leaving the country, and it is easy to be criminalized. However, the principle of legality is the life and bottom line of criminal law, and no one is allowed to cross it. Here is a quote from Professor Chen Ruihua's "Visible Justice", saying that "to achieve justice, even if the sky collapses".