The crime of illegally crossing the State border is enshrined in the Penal CodeArticle 322[Crime of Illegally Crossing the National (Border) Border] Whoever violates national (border) border management regulations by illegally crossing the national (border) border, and the circumstances are serious, is to be sentenced to up to one year imprisonment, short-term detention or controlled release, and a concurrent fine; Whoever illegally crosses the border of the country (border) for the purpose of participating in a terrorist organization, receiving training in terrorist activities, or carrying out terrorist activities, is to be sentenced to fixed-term imprisonment of not less than one year but not more than three years and a concurrent fine.
The supporting legal provisions for violations and crimes of obstructing national (border) border management are mainly the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Obstructing National (Border) Border Management".(Legal Interpretation 2012 No. 17), ".Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration on Lawfully Punishing Violations and Crimes Obstructing National (Border) Border Management ().Fa Fa 2022 No. 18).
I. Standards for filing and prosecuting cases for the crime of illegally crossing the national border.
The crime of illegally crossing the national border is a circumstantial offense, that is, as long as the circumstances meet the provisions of the Criminal Law"if the circumstances are serious, a criminal case should be filed and criminal responsibility should be pursued in accordance with law. Based on the "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Obstructing National (Border) Management".(Legal Interpretation 2012 No. 17), ".In any of the following circumstances, illegal crossing of the national (border) border is found to be "serious circumstances" as provided for in Article 322 of the Criminal Law, and criminal responsibility is pursued in accordance with law:
(1) Carrying out conduct that harms national interests outside the territory of the country;
(2) Illegally crossing the national (border) border three or more times, or three or more people illegally crossing the national (border) border in a group;
(3) Soliciting or enticing others to illegally cross national (border) borders together;
(4) Collusion with foreign organizations or individuals to illegally cross national (border) borders;
(5) Illegally crossing the national (border) border within one year of being given an administrative punishment for illegally crossing the national (border) border;
(6) Other situations where the circumstances are serious.
II. Standards for designating other serious circumstances.
In any of the following circumstances, it is "other circumstances with serious circumstances" as provided for in item 6 above, and criminal responsibility shall be pursued in accordance with law:
(1) Illegally crossing the national (border) border after committing a crime in order to avoid criminal prosecution;
(2) Illegally crossing the national (border) border after destroying the physical separation facilities at the border;
(3) Illegally crossing national (border) borders for the purpose of committing crimes such as telecommunications network fraud or opening casinos;
(4) Those who have been sentenced to a criminal punishment for the crime of obstructing the management of the national (border) border, and then illegally cross the national (border) border within two years after the completion of the criminal punishment.
3. Determination of the number of times, number of people, and number of crimes.
(1) The number of times the border was illegally crossed
1. The number of illegal crossings of national (border) borders shall be calculated separately according to the number of illegal exits and entries.
2. Those who return in a timely manner after illegally crossing the border, or who enter the country and surrender themselves after illegally leaving the country, shall generally be counted as one time.
(2) Calculation of the number of people who illegally crossed the national (border) border
1. Where persons illegally crossing the national (border) border cooperate with each other and jointly illegally cross the national (border) border, it is a "gang" as provided for in the "Judicial Interpretation", and a gang refers to a joint act carried out by three or more persons, including three persons;
2. Persons who illegally cross the national (border) border and travel together by chance under the arrangement of the organizer or transporter do not belong to "gangs";
3. When determining the number of "gangs" who illegally crossed the national (border) border, persons under the age of 16 are not counted.
(3) Determination of the number of crimes
Where the crime of illegally crossing the national (border) border is committed, and conduct such as obstructing public affairs, attacking the police, or obstructing the prevention and control of infectious diseases is carried out, and it meets the requirements of the relevant crimes, punishment shall be combined for the multiple crimes.
Note: Based on the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunications Network Fraud (II)".(Fa Fa 2021 No. 22)."Where there is evidence to prove that the perpetrator participated in an overseas fraud criminal group or criminal gang and carried out criminal acts of telecommunications network fraud against domestic residents abroad, and the amount of fraud is difficult to verify, but the cumulative time of leaving the country to go to an overseas fraud den is 30 days or more, or where the perpetrator has left the country for a crime of fraud multiple times, it shall be found to be "other serious circumstances" as provided for in article 266 of the Criminal Law, and criminal responsibility is to be pursued for the crime of fraud in accordance with law. Except where there is evidence proving that they left the country to engage in legitimate activities. "Where the above provisions are met, punishment is to be given concurrently for the crime of illegally crossing the national (border) border and the crime of fraud.