"Two High Level, One Ministry and One Bureau" Released the Opinions on Punishing the Illegal Crime of Obstructing the National (Border) Administration in accordance with the Law
On June 30, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the National Migration Administration jointly issued the Opinions on Punishing the Illegal Crimes that Obstruct the Administration of the National Border (Border) (Fa Fa [2022] No. 18, hereinafter referred to as the Opinions).
The Opinions adhere to the guidance of Xi Jinping's Thought on Socialism with Chinese Characteristics for a New Era, thoroughly implement Xi Jinping's Thought on the Rule of Law, and further clarify the overall requirements, application of laws, and policy grasp for punishing crimes that hinder the management of national (border) borders in accordance with the law. The main contents of the Opinions are as follows:
First, play a functional role and punish relevant crimes according to law. At present, the illegal and criminal activities impeding the management of the national (frontier) border are on a high incidence trend, intertwined with cross-border gambling, telecommunications network fraud, drugs, smuggling, violent terrorism and other illegal and criminal activities in border areas, and the harm is increasingly serious. The Opinions require people's courts, people's procuratorates, public security organs, and immigration management agencies to give full play to their functions, accurately identify illegal and criminal acts that impede the management of the national border (frontier) according to law, increase the punishment of organizers, carriers, key members of criminal groups, and those who repeatedly punish and repeatedly commit crimes, and effectively safeguard the order of the national border (frontier) management and the legitimate rights and interests of the people.
Second, focus on practical difficulties and refine relevant crime identification standards. In view of the new situation and new problems of crimes against national (frontier) management, the Opinions, in accordance with the provisions of the Criminal Law and relevant judicial interpretations, provide guidance on the specific identification of various crimes against national (frontier) management. Specifically, the Opinions clarifies the application of the crime of organizing others to illegally cross the national border (frontier), the behavior mode of transporting others to illegally cross the national border (frontier), the incrimination of the crime of illegally crossing the national border (frontier), and the calculation of the "number of people" and "number of times" involved in related crimes, further standardizing the law enforcement and judicial standards, and ensuring the uniform and correct application of the law.
The third is to standardize case handling and improve the rules of jurisdiction and evidence. In view of the characteristics of the crime of impeding the management of the national (frontier) border, such as the large span of the region, the long chain of conduct, and the dispersion of people involved in the case, the Opinions clarifies the determination of the place of crime, the handling of jurisdictional disputes, and the rules for combining cases, standardize the investigation and subsequent handling of relevant cases, and further tighten the procedural requirements for case handling. In view of the problems reflected in the current process of handling cases of obstruction to the management of national (border) boundaries, the Opinions stipulates the identification of subjective knowledge, the collection and use of overseas evidence materials, and regulates the collection, extraction, review and judgment of relevant evidence.
The fourth is to highlight the focus of punishment and implement the criminal policy of tempering justice with mercy. The Opinions insist on different treatment, strictly punish the crimes of organizing others to illegally cross the national border (frontier) and transporting others to illegally cross the national border (frontier), adhere to the whole chain, whole link and whole process punishment, and constantly squeeze the breeding and spreading space of such crimes. At the same time, according to the specific situation of the case, it is required to comprehensively consider the number of cases involved, illegal income, criminal record, impact or consequences and other circumstances, properly assess the social harmfulness, accurately identify crimes and discretion penalties, and ensure that the crime, responsibility and punishment are compatible.
Next, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration will guide local people's courts, people's procuratorates, public security organs, and immigration management agencies at all levels to strictly implement the Criminal Law, the Law on the Administration of Exit and Entry, and relevant regulations, accurately grasp the policy requirements for case handling, and punish according to law the violations and crimes that hinder the administration of the national (border) border, Effectively safeguard national (border) security and effectively safeguard the legitimate rights and interests of the people.
Opinions on punishing according to law the crimes that hinder the administration of the national border (frontier)
Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration on Printing and Distributing the Opinions on Punishing the Illegal Crimes that Obstruct the Administration of the National Border (Border) according to Law
The higher people's courts, people's procuratorates, public security departments (bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, military courts and military procuratorates of the PLA, production and construction corps branch offices of the higher people's court of the Xinjiang Uygur Autonomous Region, people's procuratorates and public security bureaus of the Xinjiang Production and Construction Corps, and entry and exit border inspection terminals:
In order to punish the illegal and criminal activities that hinder the management of the national (frontier) border according to law, and effectively maintain the order of the management of the national (frontier) border and the safety of the people's personal property, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security The National Migration Administration has jointly formulated the Opinions on Punishing the Crimes that Obstruct the Administration of the National Border (Border) according to Law. It is hereby printed and distributed. Please carefully implement it according to the actual situation. Please report to the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration in a timely manner any new situation or problem encountered in the implementation.
Supreme People's Court Supreme People's Procuratorate
National Immigration Administration of the Ministry of Public Security
June 29, 2022
Opinions on punishing according to law the crimes that hinder the administration of the national border (frontier)
In order to punish the illegal and criminal activities impeding the administration of the national border (frontier) in accordance with the law, and effectively maintain the order of the administration of the national border (frontier), according to the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, the Law of the People's Republic of China on the Administration of Exit and Entry, and the Supreme People's Court and the Supreme People's Procuratorate's Procuratorate's Opinions on Handling the Obstruction of the Administration of the National Border (Frontier) These Opinions are formulated in combination with law enforcement and judicial practice, in accordance with the Interpretation of Several Issues Concerning the Application of Law in Criminal Cases of Environmental Management (Fa Shi [2012] No. 17, hereinafter referred to as the Interpretation) and other relevant provisions.
1、 General requirements
1. In recent years, illegal and criminal activities impeding the management of the national (frontier) border have become frequent and frequent, which are intertwined with cross-border gambling, telecommunications network fraud, drugs, smuggling, violent terrorism and other illegal and criminal activities in border areas, seriously disrupting the order of the national (frontier) management, threatening public security and the safety of people's personal property. The people's courts, people's procuratorates, public security organs and immigration management agencies should further improve their political standing, deeply understand the serious social harm of crimes that hinder the management of the national (frontier) border, give full play to their respective functions, accurately identify crimes that hinder the management of the national (frontier) border according to law, improve the connection of law enforcement, investigation, prosecution and trial procedures, and increase the number of organizers The punishment of transporters, key members of criminal groups and those who have repeatedly punished criminals will minimize the criminals' ability to commit crimes again, effectively maintain the order of border management, ensure social security and stability, safeguard the vital interests of the people, and strive to achieve the organic unity of the legal effect and social effect of case handling.
2、 On the Determination of the Crime of Obstructing the Administration of National Border (Border)
2. Under any of the following circumstances, it shall be deemed as the act of "organizing others to illegally cross the national border (frontier)" as stipulated in Article 318 of the Criminal Law:
(1) Organizing others to cover up the purpose of illegal entry and exit by means of fabricating facts, concealing the truth or the like, and defrauding the entry and exit border inspection authority to approve the entry and exit;
(2) Organizing persons who are legally restricted to stay and operate in China's border areas, and illegally entering China's non border areas in violation of national (border) management regulations.
For the above-mentioned acts, when deciding whether to investigate criminal responsibility and how to judge punishment, the organizers' criminal record, means of conduct, number and times of organization, amount of illegal gains and the purpose of the organized persons to illegally cross the national border (frontier) should be taken into consideration, and properly handled according to law.
3. Those who conspire with criminals who organize or transport others to illegally cross the national (frontier) border in advance and provide assistance such as connecting, shelter, hiding, etc. before or after the entry of the persons who illegally cross the national (frontier) border shall be punished as joint crimes of organizing others to illegally cross the national (frontier) border or transporting others to illegally cross the national (frontier) border.
4. Those who knowingly cross the national (frontier) border illegally and transport them to the national (frontier) border in sections shall be deemed as "transporting others to cross the national (frontier) border illegally" in Article 321 of the Criminal Law, and shall be convicted and punished for the crime of transporting others to cross the national (frontier) border illegally. However, when deciding whether to investigate criminal responsibility and how to judge punishment, we should take full account of the role played by the perpetrator in transporting others across the national border (frontier), and properly handle it according to law.
5. The "number of people" specified in Paragraph 2 of Article 1 and Article 4 of the Interpretation shall be calculated based on the number of people actually organized and transported; Those who are not present shall be counted if they are verified to be true.
6. Those who knowingly commit the crime of defrauding exit certificates and provide false certificates, invitation letters, face-to-face training and other help shall be punished as a joint crime of defrauding exit certificates; If it conforms to the provisions of Article 318 of the Criminal Law, it shall be convicted and punished for the crime of organizing others to illegally cross the national border (frontier).
7. Those who conspire with criminals who organize others to illegally cross the national (frontier) border in advance, provide them with false certificates, invitation letters, face-to-face training and other help, defraud entry visas and other entry documents, and use them to organize others to illegally cross the national (frontier) border, shall be punished as a joint crime of organizing others to illegally cross the national (frontier) border.
8. The number of times of illegally crossing the national border (frontier) shall be calculated according to the number of times of illegal exit and entry. However, those who return in time after illegally crossing the border, or who surrender after entering the country illegally after leaving the country, shall be counted as one time.
9. Persons illegally crossing the national (frontier) border who cooperate with each other and jointly illegally cross the national (frontier) border belong to the "gang" stipulated in Item 2 of Article 5 of the Interpretation. People illegally crossing the national (frontier) border who travel by accident under the arrangement of the organizer and the carrier do not belong to "gang".
When determining the number of people who "gang up" illegally crossing the national border (frontier), those under the age of 16 are not included.
10. A person who illegally crosses the national border (frontier) under one of the following circumstances shall be classified as "other serious circumstances" as stipulated in Item 6 of Article 5 of the Interpretation:
(1) Those who illegally cross the national border (frontier) after committing a crime in order to avoid criminal investigation;
(2) Those who illegally cross the national (frontier) border after destroying the physical isolation facilities at the border;
(3) Stealing across the national border (frontier) for the purpose of committing crimes such as telecommunication network fraud and opening casinos;
(4) Having been sentenced to criminal punishment for the crime of obstructing the administration of the national border (frontier), and illegally crossing the national border (frontier) within two years after the completion of the punishment.
If a person commits a crime of illegally crossing the national border (frontier), and also commits acts of obstructing official duties, attacking the police, obstructing the prevention and control of infectious diseases, etc., which are consistent with the constitution of the relevant crime, he shall be punished for several crimes simultaneously.
11. The person who leads others on foot to evade border inspection and illegally cross the national (frontier) border through a hidden route belongs to transporting others to illegally cross the national (frontier) border. Whoever leads, plans or directs others to illegally cross the national border (frontier) and leads on foot shall be punished as the crime of organizing others to illegally cross the national border (frontier).
The number of people who lead people to illegally cross the national (frontier) border on foot is small, the perpetrator is a first offender, and indeed shows repentance. Considering the motivation, consistent performance, illegal income, actual effect and other circumstances, if it is considered that the degree of damage to the management order of the national (frontier) border is obviously small, it can be deemed that the criminal circumstances are minor, and the offender will not be prosecuted or exempted from criminal punishment according to law; If the circumstances are obviously minor and the harm is not serious, it shall not be treated as a crime.
12. As for the "repeated delivery" stipulated in the first paragraph of Article 321 of the Criminal Law, the cumulative number of people transported should generally be close to ten.
3、 Jurisdiction over criminal cases that impede the administration of national (frontier) borders
13. The public security organ in the place where the crime was committed shall file and investigate the criminal case of impeding the administration of the national (frontier) border. If it is more appropriate for the public security organ of the place where the criminal suspect resides to file a case for investigation, it may be filed for investigation by the public security organ of the place where the criminal suspect resides.
The place where the crime of impeding the administration of the national (frontier) includes the place of preparation, the place of transit, the place of seizure and other places related to criminal activities.
14. For a criminal case that obstructs the administration of the national border (frontier) with multiple criminal places, the public security organ that initially accepted the case or the public security organ of the main criminal place shall file the case for investigation. In case of any dispute, the public security organ at a common higher level shall designate the relevant public security organ to file the case for investigation in accordance with the principle of helping to find out the facts of the crime and facilitating litigation.
15. Under any of the following circumstances, the relevant public security organ may investigate the case concurrently within its scope of responsibility:
(1) One person commits several crimes;
(2) Joint crime;
(3) The criminal suspect or defendant of a joint crime also commits other crimes;
(4) The crimes committed by multiple suspects and defendants are related, and the case handling is conducive to finding out the facts of the case.
4、 On the collection and review of evidence
16. For the subjective determination involved in the case of obstruction of national (border) management, it is necessary to review whether the relevant justifications are obviously contrary to common sense and make a comprehensive analysis and judgment in combination with the process and manner of the conduct, the circumstances and environment when the conduct was seized, the cognitive ability, past experience, relationship with the partner, illegal profits, etc. of the perpetrator.
In the case of organizing others to illegally cross the national border (frontier) or transporting others to illegally cross the national border (frontier), the perpetrator may be presumed to have subjective knowledge under any of the following circumstances, except that the perpetrator makes a reasonable explanation or has evidence to the contrary:
(1) Using concealed means such as concealment, camouflage and refitting to pick up or shelter people who illegally cross the national (frontier) border;
(2) Use the same communication group, secret language, etc. to communicate with other actors impeding the border management of the country (frontier);
(3) Evading border inspection by means of bypassing customs and avoiding cards, or the time and route of passing through border areas before and after entry are obviously against common sense;
(4) Deliberately providing false identity, cause, location, contact information and other information when accepting law enforcement inspection;
(5) The remuneration paid, collected or agreed upon is obviously unreasonable;
(6) Attempting to escape, obstructing or resisting law enforcement inspection, or destroying evidence when encountering law enforcement inspection;
(7) Other circumstances sufficient to identify the perpetrator's knowledge.
17. The people's court, the people's procuratorate, the public security organ, and the immigration management agency shall provide translation for suspects, defendants, witnesses, and other relevant personnel who are not familiar with the language commonly used in China.
If the translator is unable to be present within the prescribed time limit for handling the case, the case handling authority may conduct the translation through video connection, and make continuous audio and video recordings throughout the translation process. No selective recording, cutting, editing or modification is allowed.
The translator shall sign the translated document.
18. Overseas evidence materials collected according to the provisions of international treaties or through channels such as criminal judicial assistance and police cooperation, which can prove the facts of the case and comply with the provisions of the Criminal Procedure Law, can be used as evidence, except that the scope of use of the materials is clearly limited by the provider or by bilateral agreements signed between China and relevant countries.
The case handling organ shall transfer the relevant explanatory materials of the overseas law enforcement agency on the source, extractor, extraction time or provider, provision time, custody and transfer process of the collected evidence; If the overseas law enforcement agency fails to provide relevant explanatory materials due to the restriction of objective conditions, the case handling agency shall explain the reasons and make a written explanation of the relevant matters of the collected evidence.
19. If the materials collected by taking technical investigation measures are used as evidence, they shall be transferred with the case, and the legal documents, evidence list and relevant information explanation of taking technical investigation measures shall be attached.
20. All kinds of property found in the case that can be used to prove the guilt or innocence of the criminal suspect or defendant shall be sealed up, detained and frozen in strict accordance with legal conditions and procedures. No property unrelated to the case may be sealed up, distrained or frozen. All sealed, detained and frozen properties shall be reviewed in a timely manner. If it is ascertained that the case has nothing to do with it, it shall be dissolved and returned within three days, and the relevant parties shall be notified.
To seal up, distrain or freeze the property involved in the case and its fruits, a list shall be made, properly kept and transferred with the case. After the people's court makes an effective judgment, it shall deal with it according to law.
The public security organ and the People's Procuratorate shall examine and screen the property involved in the case. When transferring the case for examination and prosecution or initiating a public prosecution, the handling opinions of the property involved in the case shall be put forward. The people's court shall make a judgment according to law on the property involved in the case transferred with the case.
5、 Grasping the Criminal Policy of Tempering Justice with Mercy
21. When handling criminal cases that hinder the administration of the national (frontier) border, we should comprehensively consider the criminal motivation, behavior mode, purpose of the perpetrator, as well as the resulting harmful consequences and other factors, comprehensively grasp the criminal facts and sentencing circumstances, and punish according to law. The connection between administrative law enforcement and criminal justice should be well done. Cases suspected of impeding national (border) management should be promptly transferred for investigation, and administrative punishment should not replace criminal investigation.
If the perpetrator who is not prosecuted or exempted from criminal punishment for the relevant act should be given administrative punishment, administrative punishment or other punishment according to law, he shall be transferred to the relevant competent authority for handling according to law.
22. Highlight the focus of combating criminal cases that hinder the management of the national (frontier), severely punish the crime of organizing others to illegally cross the national (frontier), and adhere to the whole chain, whole link, and whole process of criminal punishment on the industrial chain that hinders the management of the national (frontier). Those who cheat out entry documents, provide forged or altered entry and exit documents, sell entry and exit documents, or transport people to illegally cross the national border (frontier) for the purpose of organizing others to illegally cross the national border (frontier), forming a chain of interests, shall be resolutely punished according to law, dig deep into the source of crime, cut off the chain of interests, and constantly squeeze the space for the breeding and spread of such crimes.
For the crime of transporting others to illegally cross the national border (frontier), it is necessary to comprehensively consider the number of people transported, illegal income, criminal record and other legal convictions and punishments, and focus on punishing those who take this as a profession, repeatedly punish those who commit crimes, make huge profits and other situations with major social harm.
For the crime of illegally crossing the national border (frontier), it is necessary to comprehensively consider the motivation, means of conduct, criminal record and other legal convictions and punishments, and focus on punishing cross-border crimes, repeated punishments and other situations with significant social harm.
23. As for criminal gangs and criminal groups that impede the management of national (frontier) borders, priority should be given to punishing the ringleaders, principal criminals and active participants. For those employed or used to engage in information registration, material submission and other auxiliary staff who do not directly commit acts impeding the management of the national (border), criminal responsibility is generally not investigated, and the public security organs and immigration management agencies may impose administrative penalties or other punishments according to law.
24. Relevant acts involved in the crime of obstructing the administration of the national (frontier) border after illegally crossing the national (frontier) border shall be handled according to the circumstances. Those who organize and transport others to illegally cross the national border (frontier), and then organize to commit crimes after others have illegally crossed the national border (frontier), shall be the focus of punishment. If they meet the provisions on combined punishment for several crimes, they shall be punished for several crimes.
For those who organize or transport others to illegally cross the national (frontier) border for illegal employment, or recruit workers knowing that they are criminals who illegally cross the national (frontier) border, when deciding whether to pursue criminal responsibility and how to judge punishment, they should comprehensively consider the number of people crossing the border, illegal income, criminal record, impact or consequences, and properly assess the social harmfulness, Properly handle according to law. Among them, if the unit carries out the above acts and investigates the organizers, planners and implementers for criminal responsibility according to law, the conviction and sentencing should be comprehensively considered, and the difference should be properly reflected to ensure that the crime, responsibility and punishment are compatible.
25. For the crime of hindering the administration of the national border (frontier) for the purpose of making profits, attention should be paid to the application of property punishment, the recovery of criminal income, the confiscation of crime tools and other disposal means, the implementation of property punishment should be strengthened, and the ability and conditions to re commit a crime should be deprived to the maximum extent.
26. The criminal suspect or defendant who provides important evidence or clues plays a key role in the detection and investigation of criminal cases that seriously hamper the administration of the national border (frontier). If it is verified that it is true, it can be dealt with leniently according to law.
Deepen the Control of Crimes that Obstruct the Administration of National (Border) Borders and Effectively Safeguard the Personal and Property Safety of the People ——Research Office of the Supreme People's Court, Law and Policy Research Office of the Supreme People's Procuratorate, Legal Affairs Bureau of the Ministry of Public Security, Policy and Regulation Department of the National Immigration Administration The person in charge Answers to the reporter's questions about the Opinions on Punishing the Crimes that Obstruct the Administration of the National Border (Border) in accordance with the Law
On June 30, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the National Migration Administration jointly issued the Opinions on Punishing the Illegal Crimes that Obstruct the Administration of the National Border (Border) (Fa Fa [2022] No. 18, hereinafter referred to as the Opinions). In order to facilitate accurate understanding and application in practice, relevant principals from the Research Office of the Supreme People's Court, the Law and Policy Research Office of the Supreme People's Procuratorate, the Legal Affairs Bureau of the Ministry of Public Security, and the Policy and Regulation Department of the National Migration Administration were interviewed.
Q: Please introduce the background and main process of the formulation of the Opinions.
Answer: On June 30, 2012, the Law on the Administration of Exit and Entry was officially promulgated to further standardize the administration of exit and entry. In December of the same year, the "two high level officials" jointly issued the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases that Obstruct the Management of National (Border) Areas (Fa Shi [2012] No. 17, hereinafter referred to as the "Interpretation"), which stipulates the criteria for conviction and sentencing of crimes that impede the management of national (border) areas and the application of relevant laws. Over the past decade, the people's courts, people's procuratorates, public security organs and immigration management institutions at all levels have strictly applied the provisions of the Criminal Law, the Law on the Administration of Exit and Entry and the Interpretation, severely punished the violations and crimes impeding the administration of the national (border) according to law, and effectively protected the order of the administration of the national (border) and the vital interests of the people, achieving good results.
With the economic and social development and the continuous deepening of China's opening up to the outside world, in recent years, some new situations and characteristics have emerged in crimes against the administration of the national (border). It is urgent to strengthen the governance of acts against the administration of the national (border). Specifically: (1) The number of cases has increased rapidly and the social harm is serious. At present, the crime of obstructing the administration of the national (frontier) border is high and frequent, and shows an obvious growth trend. During the ten years from 2012 to 2021, the number of criminal cases against national (border) management heard by courts across the country continued to grow, and the number of cases and effective judgments in 2021 increased by more than 10 times and 23 times respectively compared with 2012. The crime of obstructing the management of the national (frontier) border often grows with cross-border crime, harms the order of economic and social development and the safety of people's personal property, and has serious social harm; Since the outbreak of the COVID-19 epidemic, "illegal immigration with epidemic diseases" has increased the risk of importing overseas epidemic diseases, which has brought significant adverse effects on China's epidemic prevention and control work and social stability in border areas. In 2021, the number of suspects suspected of impeding the administration of the national border (frontier) prosecuted by the national procuratorial organs will be 3.3 times higher than that in 2020. (2) The behavior pattern is changeable, and the application of law is complex. On the one hand, the channels of communication between China and other countries are increasingly widened, and the problems of organizing others to "hold certificates" to illegally cross the national border (frontier) are prominent; On the other hand, with the improvement of the competent department's level of prevention and attack, the means of hindering the management of the national (frontier) border crimes have been renovated, and the situation of subsection transportation, leading others on foot to illegally cross the national (frontier) border has gradually increased. There are disputes in practice about how to deal with these behaviors qualitatively, which need guidance and clarification. (3) There are regional differences and different processing scales. China is the country with the longest land boundary line in the world. The total length of the land boundary line is more than 20000 kilometers. Influenced by the geographical characteristics of relevant border areas and other factors, some illegal acts have obvious regional characteristics. There are certain differences in the purpose, mode, frequency and degree of harm to the national (border) management order. In practice, the handling scales of relevant cases are not consistent, and the legal and policy scales need to be further standardized.
The Supreme People's Court, together with the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration, conducted in-depth research on new situations and new problems that hinder the administration of laws and crimes on the national (frontier) border, solicited extensive opinions, repeatedly demonstrated and improved them, and in particular, fully absorbed the opinions and suggestions of the frontline in handling cases in areas where relevant cases are high, and formulated the Opinions.
Q: Please introduce the main considerations for the formulation of the Opinions.
Answer: The Opinions adhere to the guidance of Xi Jinping's Thought on Socialism with Chinese Characteristics for a New Era, thoroughly implement Xi Jinping's Thought on the Rule of Law, adhere to punishing illegal and criminal activities that hinder the management of the national (frontier) border according to law, practically maintain the order of the management of the national (frontier) border, and provide a strong legal guarantee for high-level opening up. Specifically, in the process of formulation, the following points were highlighted:
First, we should respond to changes in the situation and severely punish crimes in accordance with the law. Based on the current high incidence of crimes impeding the management of the national (frontier), especially the fact that cross-border gambling, telecommunications network fraud, etc. are intertwined and growing, as well as the actual situation of increasing the risk of imported overseas epidemic diseases, the Opinions, from the law enforcement and judicial aspects, effectively increased the punishment of crimes impeding the management of the national (frontier) to effectively maintain the security of the national (frontier), We will deepen our efforts to tackle cross-border crimes, strengthen the line of defense against cross-border epidemics, and ensure the safety of people's lives and property.
Second, focus on practical difficulties and refine the applicable standards of law. There are some differences in the practice of the application of the law to the crime of impeding the administration of the national (frontier) border. For example, for foreigners who are restricted to stay and operate in China's border areas, can illegal entry into China's non border areas be identified as "illegally crossing the national border (frontier)"; For another example, the number of acts of illegally crossing the national border (frontier) is calculated separately or jointly according to the entry and exit acts. The Opinions further refined and clarified the relevant provisions in view of the prominent problems puzzling practice, focused on standardizing the law enforcement and judicial standards, and ensured the uniform and correct application of laws.
The third is to highlight the focus of punishment and accurately implement criminal policies. The Opinions emphasized that the ringleaders, principal criminals and active participants of organizational acts and criminal groups should be severely punished according to law, and the purpose of effectively curbing and preventing crimes should be achieved through strict policy requirements. On this basis, the Opinions clarifies that those who are employed or used to engage in auxiliary work and do not directly implement acts that hinder the management of the national border (frontier) will not be investigated for criminal responsibility in general, and through the policy guidance of "leniency", to achieve the adaptation of crime, responsibility and punishment, and ensure that good results are achieved in case handling.
Q: The crime of organizing others to illegally cross the national border (frontier) is a key crime of obstructing the management of the national border (frontier). Please introduce what is stipulated in the Opinions?
Answer: In view of the prominent problems reflected in the current judicial practice, the Opinions has made special provisions on the determination of the crime of organizing others to illegally cross the national border (frontier). To sum up, there are mainly three aspects as follows:
First, the identification of the act of organizing others to "hold certificates" to defraud the entry and exit approval. At present, it is common to use the policy of mutual visa exemption between China and other countries to organize people with exit and entry certificates to cover up the purpose of illegal entry and exit by fabricating facts, concealing the truth and the like, and to cheat the entry border inspection authority to approve the entry and exit, which has increasingly become an important way to hamper national (border) management activities. In this regard, the Opinions clearly stated that the act of such organizations' "card holders" defrauding the exit and entry border inspection authorities to approve the exit and entry should be recognized as organizing others to illegally cross the national border (frontier).
Second, the identification of illegal entry of foreign border residents into non border areas. In recent years, some people, driven by interests, have taken advantage of the convenient policy of border people's exchanges to organize foreign border people to work and stay in non border areas of China. Such activities tend to be large-scale and industrialized in some border areas, which has a certain impact on domestic social management and economic order. In this regard, the Opinions clearly stated that the illegal entry into non border areas of China in violation of national (border) management laws and regulations by persons who are legally limited to stay and operate in China's border areas should be recognized as organizing others to illegally cross the national (border) border.
Third, grasp the policy of criminal investigation of relevant acts. On the one hand, the Opinions limit the object of criminal regulation to organizational behavior for "holding a certificate" to illegally cross the national (border) border and border people illegally entering non border areas. On the other hand, there are obvious individual differences in the degree of social harm in organizing "licensed" persons to illegally cross the border and organizing border people to illegally enter non border areas. Some organize foreigners to enter the country to engage in illegal labor services, and some organize Chinese citizens to leave the country to participate in telecommunications network fraud, gambling and other crimes, which should be handled according to the circumstances. Based on this, the Opinion requires that "when deciding whether to pursue criminal responsibility and how to judge punishment, the organizers' criminal record, means of conduct, number and frequency of organizations, amount of illegal gains, and the purpose of organized persons to illegally cross the national (border) border should be comprehensively considered and properly handled according to law".
Q: The Opinions details the determination of the crime of transporting others across the national border (frontier). Please introduce the relevant information.
Answer: China has a long national boundary and complicated geographical environment in border areas. Driven by interests, the crime of transporting others to illegally cross the national border (frontier) is more common. In recent years, some lawbreakers in border areas have been engaged in transporting and guiding others to enter and leave the country illegally by means of opening channels privately and destroying border blocking facilities; Some lawbreakers "break up" the people illegally crossing the national border (frontier) into parts by means of connection, shelter, hiding, etc; Some of them use vehicles, ships or hiking guides alternately, frequently changing transportation routes, with the intention of avoiding attacks. It has become an urgent need for practice to refine the identification standards of such crimes with the times.
In this regard, the Opinions mainly stipulates the following: (1) If a person knowingly crosses the national (frontier) border illegally and transports him to the national (frontier) border in sections, he shall be deemed as "transporting others to cross the national (frontier) border illegally" as stipulated in Article 321 of the Criminal Law, and shall be convicted and punished for the crime of transporting others to cross the national (frontier) border illegally. (2) The person who leads others on foot to evade border inspection and illegally cross the national (frontier) border through a hidden route belongs to transporting others to illegally cross the national (frontier) border. (3) Combine punishment with education, comprehensively consider the number of people transported, illegal income, criminal record and other legal convictions and punishments, and focus on punishing those who take this as a profession, repeatedly punish and repeatedly commit crimes, make huge profits, and other situations with major social harm.
Q: In recent years, the crime of illegally crossing the national border (frontier) is on the rise. What are the detailed provisions of the Opinions on the crime of illegally crossing the national border (frontier)?
Answer: According to the Criminal Law, those who violate the national (frontier) management regulations and illegally cross the national (frontier) border, if the circumstances are serious, constitute the crime of illegally crossing the national (frontier) border. The Opinions further clarifies the identification of the crime of illegally crossing the national border (frontier) in view of the motivation, means, harmful consequences, etc. of the crime of illegally crossing the national border (frontier) in recent years.
First, the destruction of physical isolation facilities at the border is regarded as a "serious case" for illegally crossing the national (border) border. In recent years, there have been cases of illegally crossing the national border (frontier) after deliberately destroying the wire isolation network, monitoring, alarm equipment and other border facilities in China's border areas, which seriously infringes the management order of the national border (frontier), causing major risks and hidden dangers, and it is necessary to punish according to law.
The second is to clarify the calculation rules of the times of illegally crossing the national border (frontier). According to the Interpretation, "more than three times" of illegally crossing the national border (frontier) constitutes the crime of illegally crossing the national border (frontier). The Opinions further clarifies that the number of times of illegally crossing the national border (frontier) shall be calculated according to the number of times of illegal exit and entry, and stipulates that "for those who return in time after illegally crossing the border, or those who surrender after entering the country illegally after leaving the country, they shall generally be counted as one time". The calculation standard shall be determined according to different situations, so as to achieve targeted strikes according to law.
The third is to define the "gang" illegally crossing the national border (frontier). "Three or more people gang up to illegally cross the national (frontier) border" is a case of "serious circumstances". Considering the complexity of the practice, the Opinions clearly states that those who illegally cross the national (frontier) border cooperate with each other and jointly cross the national (frontier) border belong to "gang", while those who accidentally travel together under the arrangement of the organizer and the carrier do not belong to "gang", so as to further highlight the key points of punishment and realize the adaptation of crime, responsibility and punishment.
Q: At present, crimes against the management of national (frontier) borders are characterized by organization, internationalization and networking. What are the specific provisions in the Opinions?
Answer: From the perspective of case handling practice, the current crime of impeding the management of national (frontier) boundaries does show obvious characteristics of organization, internationalization and networking. Criminal gangs control crimes, with strict internal organization and clear division of labor; The leader of the gang conducts remote command outside the country, and uses "slang" and "secret language" to communicate to avoid attack; Publish false information on the Internet to entice and attract illegal immigrants. With the continuous renovation of criminal means, the way of committing crimes is more hidden, and it is more difficult to crack down on governance. In this regard, the Opinions make specific provisions from the following four aspects to further improve governance effectiveness:
First, strengthen the punishment of joint crimes. The Opinions clearly states that those who conspire with criminals who organize or transport others to illegally cross the national (frontier) border in advance and provide assistance such as connection, shelter, hiding, etc. before or after the entry of persons who illegally cross the national (frontier) border, shall be punished as joint crimes of organizing others to illegally cross the national (frontier) border or transporting others to illegally cross the national (frontier) border.
The second is to improve the accuracy of the strike. The Opinions emphasized that the crime of organizing others to illegally cross the national border (frontier) should be severely punished, and criminal punishment should be carried out for the industrial chain that hinders the management of the national border (frontier) in the whole chain, whole link and whole process. For the crime of illegally crossing the national border (frontier), the focus is to punish the cross-border crime, repeated punishment, and other situations with significant social harm. As for criminal gangs and criminal groups that impede the administration of national (frontier) borders, priority should be given to punishing the ringleaders, principal criminals and active participants.
Third, strengthen international cooperation in law enforcement and justice. According to the Opinions, overseas evidence materials collected according to international treaties or through criminal judicial assistance, police cooperation and other channels can be used as evidence if they can prove the facts of the case and comply with the provisions of the Criminal Procedure Law.
The fourth is to eradicate the economic basis of recidivism. The Opinions require that attention be paid to the application of property punishment, recovery of criminal proceeds, confiscation of crime tools and other disposal means, and the implementation of property punishment should be strengthened to deprive criminals of the ability and conditions to commit a new crime to the maximum extent.
Q: After the release of the Opinions, what are the considerations of the "two high levels, one ministry and one bureau" on the implementation of the Opinions?
Answer: The Opinions is an important measure taken by the central government to implement the "two high level, one ministry and one bureau" policy on deepening the governance of crimes that hinder the management of national (frontier) borders. In the next step, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the National Immigration Administration will give full play to their respective functions and roles, severely punish crimes that hinder the administration of the national border (frontier) according to law, and earnestly safeguard the order of the administration of the national border (frontier) and the safety of the people's personal property.
First, handle cases strictly in accordance with the law. Take effective measures to guide local case handling organs to strictly implement the criminal law and relevant laws and regulations, accurately grasp the policy requirements for case handling, effectively increase punishment, handle cases related to organizing and transporting others to illegally cross the national border (frontier) in accordance with the law, highlight the focus of attack, show the position of severe punishment, and respond to social concerns.
Second, strengthen the connection of execution. The two-way connection between administrative law enforcement and criminal justice should be well done, and the cases suspected of impeding the national (border) management should be promptly transferred for investigation, and administrative punishment should not replace criminal investigation. If the perpetrator who is not prosecuted or exempted from criminal punishment for the relevant act should be given administrative punishment, administrative punishment or other punishment according to law, he shall be transferred to the relevant competent authority for handling according to law.
Third, promote source control and comprehensive control. Further improve the comprehensive governance mechanism in the field of national (border) management, assist relevant administrative departments in strengthening administrative law enforcement and social governance, promote the eradication of the breeding ground for relevant cross-border crimes, and effectively prevent the occurrence of crimes that hinder national (border) management from the source.
Fourth, strengthen the publicity of law popularization. We will conscientiously implement the responsibility system of "whoever enforces the law will popularize the law", guide the masses to consciously abide by the exit and entry management laws and regulations, jointly prevent cross-border crimes, safeguard national (border) order and their legitimate rights and interests, and ensure the security and stability of ports and borders in combination with the handling of relevant cases that hinder the management of national (border) borders.
