According to the relevant provisions, goods imported in the form of "border-people mutual market" trade are exempted from import tariffs and import linkage taxes. As a result, in practice, the use of this policy, the need to import goods through the border people to carry the mode of transportation into the country to avoid paying taxes. At this time, the subject is usually convicted and punished for the crime of smuggling ordinary goods. And if the owner of the goods commissioned by the agent to import goods through customs, the agent is falsely declared "border crossing" trade in the way of smuggling, the agent and the owner of the goods at this time should be how to characterize and deal with? This article is centered on this issue to start the analysis.

I. the case introduced: the agent falsely reported "border city", the owner was convicted of smuggling

Case: (2021) shanghai 03 criminal beginning of 52th

From January 2014 to August 2020, Wang Moumou in the operation of company D, in order to reduce operating costs, make illegal profits, and Vietnamese suppliers conspire, should be imported in the form of general trade in the form of duty-paid frozen shrimp, through the Mo Moumou (a separate case, convicted of smuggling of general cargo) headed by the customs clearance gang, to the Border Mutual Trade duty-free carry way to smuggle into the country, and then the frozen shrimp through the The frozen shrimps were then transported to Shanghai by truck. Wang Moumou to pay freight to the truck driver, and to Mo Moumou and others designated bank account to pay the "lump sum fee", smuggled imported frozen shrimp by Company D external sales profit. Shanghai Wusong Customs accounting verification, D company using the above method to declare the import of frozen shrimp 169 votes, evading the total amount of tax payable more than 35.8 million yuan.

Shanghai Intermediate People's Court of the third hearing that Shanghai D and its directly responsible officer in charge of Wang Moumou in order to obtain illegal benefits, in violation of customs regulations, to avoid customs supervision, the goods should be imported in the form of general trade tax payment, through others falsely declared as the border trade in the form of duty-free imports, evading the amount of tax payable of more than $ 35,800,000, their behavior has constituted the crime of smuggling of general goods, and ultimately, the company D was sentenced to a fine of RMB 17 million and Wang was sentenced to five years and six months' imprisonment.

Case 2: (2019) Su Criminal Final No. 293

Between February 2015 and December 2017, Xu Moumou and Yin Moumou, after collusion, went to Vietnam and Malaysia several times by Yin Moumou to look for suppliers to order frozen black tiger prawns, frozen South American white shrimp kernels, frozen cuttlefish, frozen balsa fish fillets and other frozen seafood products, and in order to make illegal profits, Xu Moumou and Yin Moumou commissioned Zhong Mou to import frozen seafood products in the city of Dongxing, Guangxi, that should be imported by way of general trade, for the purpose of making illegal profits, at a customs clearance fee that is obviously lower than the amount of the import tax to be paid. Xu Moumou and Yin Moumou commissioned Zhong Mou in Dongxing City, Guangxi to import frozen seafood which should be imported by way of general trade with tax payment, falsely declared it as border trade and transported it to Wuxi, and then sold it in China. After the Wuxi Customs audit, the duty-paid price of the goods involved was RMB 290 million, and the import tax evaded was more than RMB 55.8 million.

The court held that Xu Moumou and Yin Moumou knew that the imported goods did not meet the conditions of the border market, but still used the border market to smuggle frozen seafood into the country which should be imported by general trade, and the evasion of tax payable was particularly huge, and their behaviors constituted the crime of smuggling general goods, and they committed a joint crime. Xu was ultimately sentenced to 12 years' imprisonment and a fine of RMB 35 million; Yin was sentenced to 11 years' imprisonment and a fine of RMB 15 million.

II. False declaration of "Border Mutual Market" imports, the agent constitutes the crime of smuggling of ordinary goods.

Border people's mutual market is a way of border trade, "border people's mutual market" trade is aimed at promoting the healthy development of the border area residents mutual trade, and prosperity of the border economy. According to the provisions of Article 5 of the Measures for the Administration of the Border Mutual Trade (Decree No. 56 of the General Administration of Customs), the daily necessities imported by the border people through the mutual trade (except for those included in the list of imported goods not exempted from tax in the border people's mutual trade) are exempted from import tariffs and import linkage taxes for the daily value of less than RMB 8,000 yuan per person. If the value exceeds RMB 8,000 yuan, import tariff and import link tax will be levied on the excess portion in accordance with the regulations. However, due to China's current border market supervision is not perfect, this preferential policies aimed at promoting the border to enrich the people are often used by unscrupulous people, in practice, some people use the tax exemption policy, the organization of the border people in the way of "ants moving", should be declared in accordance with the general trade mode of imported goods, through the pseudo-declaration of the "border market". Some people take advantage of this tax exemption policy to organize the border people to import goods that should be declared as general trade in the form of "ants moving" by falsely declaring them as "border people's mutual market" trade, so as to smuggle and import them and to evade payment of import tariffs, value-added tax and consumption tax.

According to Article 153 of the Criminal Law of China, the crime of smuggling ordinary goods and articles refers to the violation of customs regulations, evading customs supervision, illegally transporting, carrying, mailing weapons, ammunition, nuclear materials, counterfeit currency, precious animals and their products, rare plants and their products, obscene articles, drugs, and cultural relics, gold, silver and other precious metals other than those prohibited by the State from being exported, goods entering or leaving the country and evading the tax payable. In terms of the manner of behavior, the specific behaviors for the establishment of this crime are varied, and generally speaking, they usually include: (1) smuggling through customs: it means that the perpetrator enters or leaves the country through customs and adopts the means of smuggling by means of false declaration, concealment, under-declaration, disguise and concealment, etc.; (2) subsequent smuggling: it means that the perpetrator first legally imports the goods and articles, and then sells them without authorization in violation of the Customs Law and the relevant laws and regulations; (3) smuggling bypassing the customs: That is, not through the customs supervision area and illegal smuggling around the customs.

In the smuggling cases related to "Border People's Mutual Market" trade, the goods that should be imported in accordance with the general trade mode are falsely declared as "Border People's Mutual Market" trade to realize the duty-free importation, and this kind of behavior violates the Customs supervision, avoids the payment of taxes, and belongs to the type of smuggling behavior through customs. Moreover, in this type of smuggling cases, usually smuggled goods are frozen aquatic products, agricultural products, so the behavior once constitute a crime, the establishment of the crime is usually the crime of smuggling of general goods.

Therefore, the agent is entrusted with the customs clearance of imported goods, if not in accordance with the general trade declaration, but through the false declaration of "Border People's Mutual Market" trade operations to evade taxes, the agent will undoubtedly be in accordance with the crime of smuggling of general goods.

III, the agent smuggling imports, whether the owner of the goods constitute a crime need to consider the subjective state

(I) the owner of the goods and agents conspire to falsely declare imports, constituting the crime of smuggling

China's criminal law on the determination of crime adhere to the principle of subjective culpability, that is, the perpetrator of their own acts of harm to society have intentionally or negligently, indicating that the perpetrator has a criminal mental attitude, so it should be condemned for their harmful acts. That is, China's criminal law determines the principle of subjective guilt responsibility, in the conviction and punishment adhere to the subjective and objective unity. For the crime of smuggling of general cargo, according to China's criminal law, the establishment of the crime requires the perpetrator to objectively implement the illegal behavior, but also need to have the subjective smuggling intention. For the determination of smuggling intention, the supreme people's court, the supreme people's procuratorate, the general administration of customs "for smuggling criminal cases of the application of law on a number of issues of opinion" (law [2002] 139) for the provisions of: "the perpetrator knows that his behavior violates national laws and regulations, to avoid customs supervision, evade the entry and exit of goods, articles of the amount of tax payable, or evade the state's prohibitive management concerning entry and exit, and hopes or lets the harmful results happen, shall be recognized as having the subjective intention of smuggling."

Therefore, if the owner of the goods entrusts the agent to import the goods, and he knows that the agent falsely declares the "Border Mutual Market", but hopes or allows him to transport the goods into the country in that way, then according to the relevant laws and regulations and judicial interpretations, the owner of the goods will be the same as the agent, and set up the crime of smuggling ordinary goods.

(II) the owner of the goods on the agent false declaration of import without knowledge, does not constitute a crime

With knowing that the act is smuggling, but hope or let the agent smuggling relative, if the owner of the agent for the false declaration of import unawareness, and neither hope that the direct intent, but also did not let the indirect intent, then the owner should not be in accordance with the crime of smuggling of general cargo criminal conviction and punishment, there is no controversy in practice. And the controversy is that, if the owner knows the agent through the "border market" way of importing but did not recognize the agent's behavior belongs to the false declaration, did not recognize constitute legal smuggling, this kind of situation on the owner of how to deal with the qualitative.

As we all know, "do not know the law is not exempt from liability" is an important principle of the application of law. Do not have legal knowledge or cognitive errors, still have to be punished, the reason is that, if the "do not know the law" exemption, then the people in the implementation of illegal and criminal behavior will be their own legal illiteracy and exculpation, which will lead to impunity, and even disguised as encouraging the people do not learn the law, do not understand the law, and will ultimately impede the construction of the rule of law society, affecting social justice and justice. Ultimately, this will hinder the construction of a society and affect the maintenance of social justice. However, "ignorance of the law does not exempt" should have its exceptions, if the perpetrator does not have the possibility of unlawful knowledge of the situation to commit criminal acts, should be exempted from criminal responsibility. The author believes that the "border people mutual market" trade has its special characteristics, coupled with the current trade regulations on this kind of serious lagging behind the reality, some of the local government in disguise, even for the local economic performance to encourage the people to this way of import trade, which makes a lot of owners of goods in the trade of the border people mutual market in the lack of awareness of the illegality of the trade. Therefore, if the owner of the goods is not aware of the customs clearance personnel belong to the false declaration of imports, belongs to the law prohibits smuggling behavior, can not be said to have the subjective intent of smuggling.

Law [2002] No. 139, Article 5 provides: "smuggling subjective intent in the 'knowingly' refers to the perpetrator knows or should know that the behavior engaged in is smuggling,...... but there is evidence to prove that it is indeed deluded excepted." The author believes that, for the illegal cognizance or not, can refer to the provisions of the owner of the goods to bear the burden of proof. If the owner of the goods at a reasonable price to pay agency fees, or can provide agents to provide them with the acceptance of customs, commodity inspection, border inspection on-site supervision, or to provide local policy documents and other evidence, then it should be considered that it does not have the knowledge of the illegality of the law should be exempted from the responsibility of the law, which is in line with the law does not force the axiomatic cognition, but also in line with the realization of the case of the requirements of justice.

IV. entrusted to import should be careful to avoid being implicated in smuggling risk

As mentioned above, according to the law, if the owner of the goods for the agent's smuggling behavior is unaware of or does not have the subjective intent, can be exonerated from the smuggling crime. However, if the response is not appropriate, may still be treated as an accomplice to the crime of smuggling, when the owner of the goods, whether in the economy or reputation, will undoubtedly suffer serious losses. For the enterprise, it may even lead to its unbearable and difficult to continue to operate. Therefore, the importance of preventing the risk of entrusted imports is indisputable. In this regard, the author puts forward the following suggestions for the reference of relevant enterprises and personnel:

First, the owner of the goods should be as far as possible to import goods in their own name, to pay taxes to the Customs and Excise Department, to prevent deceptive behavior of the agent.

Second, if you need to entrust an agent to import, you should entrust a reputable agent to follow up the customs clearance status in due course. When signing the contract with the agent, it is recommended to add the clause of truthful declaration by the agent, requiring the agent to import goods legally and fulfill the obligation of correct declaration. Secondly, try to let the agent in the contract set out the costs, especially taxes and fees, to pay fees to the agent must note the purpose. Finally, you can follow up on the status of customs clearance of goods at the right time, check the customs declaration of goods, and save these documents. Once the documents are found to have false declarations, concealment and other illegal situations, you can clearly require the agent to stop illegal activities. If the agent continues to implement illegal activities, enterprises can take the initiative to report the situation to the Customs and Excise Department, in order to stop illegal activities as soon as possible to minimize the risk.

Third, fully understand the import duties and taxes on goods. In practice, if the owner of the goods to significantly lower than the normal import of goods payable taxes entrusted to other agents import business, often found to have the subjective intent of smuggling. Therefore, once the agency fee is significantly lower than the import tax, be sure to be vigilant about its legitimacy.

Fourth, if necessary, you can seek the assistance of professional lawyers. Professional lawyers can conduct trade compliance training for enterprise employees, draft or review the commission contract, assess the legal risks, etc., can escort the safe and healthy development of enterprises.

In short, commissioned imports in the convenience of the owner of the goods at the same time also brings certain legal risks to the owner, it is recommended that the relevant enterprises and personnel in the choice of this way of import must be careful and cautious, to prevent the suspected smuggling of criminal penalties suffered losses.