Wonderful caseShu Zhuo Sheng's criminal team studied similar cases carefully, and the case of illegally crossing the border was not prosecuted
Author | Zhuo Sheng Criminal Team
Case background
Zhuo Sheng's team recently handled a case of illegally crossing the country (border). Since June 2019, the party, Li (a pseudonym), has defrauded a certain entry-exit management detachment in Guangxi to obtain an entry-exit business endorsement for Macao and then smuggled out of the country several times, with a total of 12 entry-exit records. During his stay in Macao, he engaged in non-commercial activities. According to the law, Li's behavior has reached the level of seriousness stipulated in Article 322 of the Criminal Law of the People's Republic of China, which constitutes the crime of illegally crossing the country (border).
Case handling process
Understand the case and develop a defense strategy
When Li came to consult the Zhuosheng team for legal help, the case had reached the stage of review and prosecution. After handling the relevant entrustment procedures, the lawyers of the Zhuosheng team immediately made an appointment with the procuratorate to review the file, retrieve the file and organize the marking report.
After combing and analyzing the existing evidence materials and fully communicating with Li, the Zhuosheng team found that Li was just for convenience and listened to a travel agency's promise to help apply for a visa. After giving the travel agency the visa fee, the travel agency helped Li to be affiliated with a company and then defrauded the business endorsement on the grounds of applying for the company's business activities. Based on the evidence in the case, the Zhuosheng team believed that Li's crime was minor and had a mitigating circumstance, so they decided to defend against prosecution and wrote a legal opinion accordingly. The main defense points are as follows:
First, the circumstances of Li's crime are minor, and the degree of harm to national (border) border management is small.
From the perspective of objective behavior, Li entered and left the country only 12 times with false business endorsements, slightly exceeding Article 5 of 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 that Obstruct State (Border) Administration (Legal Interpretation [2012] No. 17)1The criminalization standard stipulated, the degree of its criminal behavior is less severe and the circumstances are minor;
From the subjective point of view, Li did not have a complete understanding of whether his behavior belonged to "sneaking across the country (border) ", and the subjective malignancy was less. Li entered and left the country for tourism relaxation. Due to his lack of understanding of the relevant regulations of entry and exit management, he mistakenly believed the travel agent involved in the case for convenience. After paying the certification fee, the travel agent could handle legal and regular entry and exit documents for himself.
He himself is completely ignorant of the above-mentioned travel intermediary process, but only provides a real and valid ID document according to the requirements of the other party. All the procedures for the business endorsement of the pass are handled by the travel intermediary.
Second, Li has surrendered and is a first-time offender or an occasional offender. According to Article 67 of the Criminal Law of the People's Republic of China2They can be exempted from punishment.
According to the case report issued by the public security organ, Li initially received a phone call from the police of the Public Security Bureau. At that time, Li took the initiative to go to the police station for investigation without being interrogated or taking criminal coercive measures, which could be identified as voluntary surrender.
After taking the initiative to surrender, Li truthfully confessed his criminal facts of illegally crossing the country (border), and was able to truthfully account for the manner of obtaining business endorsements, the number of dates he had illegally crossed the border, etc. His confession could be mutually corroborated with other evidence materials, which could be identified as a truthful confession.
Third, Li strictly abided by relevant regulations during his release on bail pending trial, cooperated with the investigation, and had a stable job in a securities company in Shenzhen. He used his actions to repent and correct his deviant path.
At present, Li has realized his mistake, has a deep understanding of our country's entry-exit management system and laws and regulations, and diligently invests in productive labor to give back to the society. In view of the purpose of punishment is education, supplemented by punishment, the lawyer believes that it can be considered to exempt it from punishment.
1"Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Obstructing State (Border) Administration" (Legal Interpretation [2012] No. 17) Article 5: "... (2) Sneaking across the State (Border) for more than three times or forming a group of more than three peopleThose who sneak across the border;... "
2Article 67 of the Criminal Law: "Those who surrender voluntarily after committing a crime and truthfully confess their crimes shall surrender themselves. Those who surrender may be given a lighter or reduced punishment. Among them, those who commit a lighter crime may be exempted from punishment."
Study similar cases, analyze and compile them
At the same time, Zhuo Sheng's team searched for similar cases inside and outside Guangdong Province, compiled and summarized them, and proposed to the procuratorate that for the sake of fairness and justice, the same case circumstances should be handled in the same way.
Zhuo Sheng team lawyer pointed out that the above cases were not prosecuted the number of times to cross the border up to hundreds of times, but still can be identified as minor circumstances by the procuratorate, the final decision not to prosecute, in contrast, Lee only crossed the border 12 times, the crime of our country, the degree of harm to the border management order is far less than the above cases, can also be dealt with without prosecution.
Case result
After receiving the legal documents and case search materials submitted by the lawyers of Zhuo Sheng's team, the prosecutor also conducted a serious review and study. After many exchanges of legal opinions and the trial of written materials, the prosecutor finally adopted the lawyer's point of view and believed that in this case, although Li had illegally crossed the country (border), the circumstances were minor and had mitigating circumstances, so he organized a hearing and made a decision not to prosecute.
Relevant legal provisions
"Criminal Law of the People's Republic of China"
Article 322Anyone who violates national (border) border regulations and illegally crosses the national (border) border, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than one year, criminal detention or public surveillance, and shall also be fined; anyone who illegally crosses the national (border) border in order to participate in terrorist organizations, receive terrorist training or carry out terrorist activities shall be sentenced to fixed-term imprisonment of not less than one year but not more than three years and shall also be fined.
"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 Obstruction of State (Border) Administration" (Legal Interpretation [2012] No. 17)
Article 5Anyone who illegally crosses the national (border) border and falls under any of the following circumstances shall be identified as "serious circumstances" as stipulated in Article 322 of the Criminal Law:
(1) committing acts that harm national interests abroad;
(2) illegally crossing the border of the country (border) more than three times or in a group of three or more people illegally crossing the border of the country (border);
(3) coaxing or luring others to cross the border together;
(4) Colluding with overseas organizations or personnel to illegally cross the national (border) border;
(5) illegally crossing the national (border) border within one year after being subject to administrative punishment for illegally crossing the national (border) border;
(6) Other serious circumstances.
Article 6Under any of the following circumstances, it shall be determined as an act of "illegally crossing the national (border) border" as stipulated in Chapter VI, Section 3 of the Criminal Law:
(1) entering or leaving the country (border) without entry or exit documents or evading border inspection;
(2) using forged, altered, or invalid entry-exit documents to enter or leave the country (border);
(3) using the entry and exit documents of others to enter or leave the country (border);
(4) entering or leaving the country (border) by using entry-exit documents obtained fraudulently by means of false entry-exit reasons, concealment of true identity, or fraudulent use of other people's identity documents;
(5) illegally entering or leaving the country (border) by other means.
"Opinions on Punishing Illegal Crimes against State (Border) Administration according to Law" (Fa Fa [2022] No. 18)
8. The number of illegal border crossings shall be calculated separately according to the number of illegal departures and entries. However, for those who return in time after illegally crossing the border, or who surrender after illegally leaving the country, they shall generally be counted as one.
10. Those who illegally cross the national (border) border and have any of the following circumstances belong to the "other serious circumstances" stipulated in Item 6 of Article 5 of the Interpretation:
(1) After committing a crime, he illegally crosses the national (border) border to avoid criminal prosecution.
(2) illegally crossing the country (border) after destroying the physical isolation facilities at the border;
(3) for the purpose of committing telecommunications network fraud, opening casinos and other crimes, illegally crossing the national (border) border;
(4) Those who have been sentenced to punishment for a crime that obstructs the management of the national (border) border, and then illegally cross the national (border) border within two years after the execution of the punishment.
Those who commit a crime of illegally crossing the national (border) border, and also commit acts such as obstructing official duties, assaulting police, and obstructing the prevention and control of infectious diseases, and conform to the constitution of the relevant crime, shall be punished for several crimes.
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