In the part of the crime of smuggling, the specific provisions of China's criminal law stipulate that the crime of smuggling includes smuggling goods and articles whose import and export are prohibited by the state and smuggling ordinary taxable goods and articles according to different smuggled objects. Article 151 specifically lists the goods and articles whose import and export are prohibited by the state, and stipulates crimes such as smuggling nuclear materials, smuggling counterfeit money, smuggling cultural relics, smuggling precious metals, smuggling rare animals and rare animal products, and smuggling rare plants and rare plant products.
Some new situations have emerged in the customs' efforts to ban the smuggling of goods and articles whose import and export are prohibited by the state. In recent years, the situation of indiscriminate mining, excavation and transportation of paleontological fossils in China tends to be prominent, and the smuggling outflow is becoming more and more serious, which leads to the loss of a large number of valuable geological heritage in China and brings immeasurable losses to scientific research. The main legal difficulties encountered by the customs in handling the smuggling case of paleontological fossils are as follows: On June 5438+February, 2005, the National People's Congress Standing Committee (NPCSC)'s Interpretation of the Provisions on Cultural Relics in the Criminal Law of People's Republic of China (PRC) Applicable to Fossils of Ancient Vertebrates and Fossils of Ancient Humans with Scientific Value (hereinafter referred to as the Interpretation) listed fossils of ancient vertebrates and fossils of ancient humans as cultural relics for criminal protection, but did not include the smuggling of the above two kinds of fossils. In addition, in recent years, cases of criminals smuggling animals and plants and their products (mostly frozen chicken, beef and other frozen products) banned by the state from overseas epidemic areas have occurred from time to time, which has caused serious harm to people's health and social and economic order. Animal and plant products from overseas epidemic areas are goods prohibited by the state from entering the country and belong to non-tax-related goods. Usually it can't be regarded as the crime of smuggling ordinary goods. However, once smuggled into the country, it must be dealt with. Only such a case can be regarded as the crime of smuggling ordinary goods, and tax evasion can be regarded as the standard of crime and non-crime. Calculating the duty-paid price and tax amount of animals and their products in smuggling epidemic areas is related to the qualitative nature of the case. In practice, the buyers and sellers of animals and plants and their products from epidemic areas usually verbally agree that it is difficult to determine the actual transaction price without signing a written contract and agreement. The actual purchase price of smugglers abroad is often low, but the customs valuation can only be based on the sales price of animals and plants and their products in similar non-epidemic areas in China, which makes the evaluation price higher than the actual transaction price and brings certain risks to anti-smuggling law enforcement. Even so, the social harm of smuggling animals and plants and their products from overseas epidemic areas is far more serious than smuggling general taxable goods. It is not enough to reflect the social harm of its behavior and it is unfair to distinguish crime from non-crime and sentencing only by the amount of tax evasion.
In view of the fact that ancient plant fossils, invertebrate fossils, animals and plants and their products from overseas epidemic areas belong to goods and articles whose import and export are prohibited by the state, and considering that the social harm of smuggling such goods and articles is not as great as that of smuggling weapons, if criminal responsibility really needs to be investigated, it can be given a lighter punishment; Considering that with the development and change of China's social and economic situation, the goods and articles prohibited by the state from import and export will be constantly adjusted, therefore, the amendment (7) only slightly modifies the third paragraph of Article 151, and generally stipulates: "Whoever smuggles precious plants and their products and other goods and articles prohibited by the state from import and export shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and fined. " In this way, the smuggling of goods and articles prohibited from import and export in all other countries except those specifically listed in the first, second and third paragraphs of Article 151 of the Criminal Law is included.
It should be pointed out that we should pay attention to the difference between this article and Article 153 of the Criminal Law, which is mainly aimed at ordinary taxable goods and articles whose import and export are not prohibited by smuggling countries.
Two, amend Article 180, and increase the provisions of the criminal law to combat the crime of "rat warehouse".
In recent years, most financial institutions such as fund companies, commercial banks, insurance companies, securities companies and futures companies have carried out investment and wealth management business or customer asset management business, holding a large amount of customer funds in their hands. Investing clients' funds in financial products such as securities and futures is one of the main ways to invest and manage clients' assets on behalf of clients. Some employees of such asset management institutions buy financial products such as securities or their derivatives, futures or option contracts at low prices in their own names or under the guise of others or inform relatives and friends, and then sell them at high prices with customers' funds to reap huge profits. Because most of these households are secretive, "stealing vegetables" financial products increase profits, so they are vividly called "rat warehouses". It has seriously damaged the financial management order, damaged the fairness, justice and openness of the market, seriously damaged the interests of customer investors and the reputation of the financial industry, and also damaged the interests of the units where employees work.
Amendment (7) amends the first paragraph of Article 180 of the Criminal Law to read: "The insider of the inside information of securities and futures trading or the person who illegally obtains the inside information of securities and futures trading buys and sells securities, or engages in futures trading related to the inside information, or divulges the information, or explicitly or implicitly implies that others engage in the above trading activities before the securities and futures trading or other information that has a significant impact on the price of securities and futures trading is made public. If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall be fined not less than one time but not more than five times the illegal income. " At the same time, in order to severely punish the crime of rat warehouse, Amendment (7) adds one paragraph as the fourth paragraph to Article 180: "Staff of financial institutions such as stock exchanges, futures exchanges, securities companies, futures brokerage companies, fund management companies, commercial banks and insurance companies, as well as staff of relevant regulatory authorities or trade associations, use other undisclosed information other than insider information obtained by taking advantage of their positions to engage in securities and transactions related to this information in violation of regulations.
(A) the characteristics of the rat warehouse crime
1. The subject of this crime is a special subject. Generally speaking, employees of asset management financial institutions can be the subject of this crime. However, people who work in securities and futures regulatory agencies or trade associations may also obtain undisclosed information that does not belong to insider information and establish a rat warehouse because of their convenience. Therefore, amendment (7) stipulates that the criminal subjects of rat warehouses are "staff of financial institutions such as stock exchanges, futures exchanges, securities companies, futures brokerage companies, fund management companies, commercial banks, insurance companies and staff of relevant regulatory authorities or industry associations".
2. The perpetrator commits "other undisclosed information other than insider information obtained by taking advantage of his position, engages in securities and futures trading activities related to this information in violation of regulations, or explicitly or implicitly engages in related trading activities by others". The so-called "undisclosed information other than inside information" mainly refers to the decision-making information that asset management institutions and valet investment and wealth management institutions are about to invest in securities, futures and other financial products with customer funds. Because it does not belong to the "inside information" stipulated by law and does not require disclosure, it is called "other undisclosed information other than inside information". The so-called "engaging in securities and futures trading activities related to this information in violation of regulations" not only includes prohibiting employees of asset management institutions such as funds from engaging in transactions that harm the interests of customers as stipulated in the Securities Investment Fund Law and other laws and administrative regulations, but also includes prohibiting employees of asset management institutions from engaging in trading activities that violate the fiduciary obligations as issued by the CSRC. Specific behavior mainly refers to the behavior of employees of asset management institutions to buy securities or their derivatives, futures or option contracts before using client funds, or to sell them before selling them.
3. "Serious circumstances" constitute a crime. Serious circumstances mainly refer to the establishment of rat warehouses for many times; The illegal profit of establishing a rat warehouse is huge, or the customer's assets are seriously lost due to the establishment of a rat warehouse.
In fact, the perpetrators of rat warehouse crimes often directly or indirectly imply that their relatives and friends open warehouses at the same time. Therefore, amendment (7) also adds the provision of "or explicitly or implicitly engaging others in the above-mentioned trading activities" to the specific acts of the crime of insider trading listed in the first paragraph of Article 180 of the Criminal Law.
(2) Attention should be paid to the distinction between the crime of rat warehouse and other crimes.
The difference between 1. and the crime of insider trading
First, from the content of information, insider information mainly focuses on the listed company itself, such as the company's restructuring plan, the change of the company's senior management, the company's major contracts, the company's profitability and so on. , has a significant impact on the company's securities and futures market prices, but should be disclosed to the public in a timely manner in accordance with relevant regulations; The information used by the rat warehouse generally belongs to the internal business secrets of the unit and belongs to "other undisclosed information other than inside information"; Second, from the perspective of the interests damaged by criminal acts, insider trading is more harmful to the legitimate rights and interests of unspecified public investors and shareholders, and "rat warehouse" trading is more harmful to the interests of asset management institutions.
2. The difference with the crime of manipulating the securities and futures market
The behavior of rat warehouse is mainly to undertake more market risks by entrusting customers with funds, thus reducing the risk of the actor himself. The purpose of the behavior is to take advantage of the information that the institution is about to use the customer's funds to buy securities and futures, and to take advantage of it in advance, and there is no subjective purpose of manipulating the trading prices of securities and futures. Manipulating the securities and futures market mainly affects the trading price or trading volume of securities and futures by means of capital advantage, information advantage or upside down and knock, so as to achieve the purpose of making profits. Therefore, the rat warehouse can not constitute the crime of manipulating the securities and futures market in terms of purpose or behavior.
3. The difference between the crime of violating trust by using entrusted property.
The crime of using entrusted property in breach of trust is a unit crime, and the subject of the crime is a financial institution, and there is no criminal responsibility for employees of financial institutions. Mainly refers to the financial institutions arbitrarily decide to use the client's funds and entrusted property, which violates the fiduciary obligation and may lead to greater risks in the managed client assets; Rat warehouse is a personal crime, and the subject of the crime is employees engaged in asset management institutions. The decision of an asset management institution to invest in securities and futures does not violate the fiduciary duty itself, and it does not belong to unauthorized use of entrusted property. The main attack is the behavior of employees of asset management institutions who use the internal information of the institutions to open positions in advance to seek illegal interests. (Huang Taiyun, deputy director of the Criminal Law Office of the the National People's Congress Standing Committee (NPCSC) Municipal Law Commission)