Source: website of national immigration administration
We will deepen the control of crimes that hinder the administration of the state (border) border, and earnestly safeguard the safety of the people's lives and property
——The person in charge of the Research Office of the Supreme People's court, the law and Policy Research Office of the Supreme People's Procuratorate, the legal system bureau of the Ministry of public security, and the policy and regulation department of the State Administration of immigration answered a reporter's question on the "opinions on punishing according to law the crimes that hinder the administration of the state (border)"
On June 30, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security and the State Administration of immigration jointly issued the opinions on punishing the illegal crimes that hinder the administration of the state (frontier) border according to law (Fa  No. 18, hereinafter referred to as the opinions). In order to facilitate accurate understanding and application in practice, relevant persons in charge of the Research Office of the Supreme People's court, the law and Policy Research Office of the Supreme People's Procuratorate, the legal system bureau of the Ministry of public security, and the policy and regulation department of the state immigration administration, were interviewed.
Q: please introduce the background and main process of the opinions.
A: On June 30, 2012, the exit and entry administration law was officially promulgated to further standardize the exit and entry administration. In December of the same year, the Supreme People's Congress of the people's Republic of China and the Supreme People's Congress of the people's Republic of China jointly issued the interpretation on Several Issues concerning the application of law in handling criminal cases involving obstruction of state (border) border Administration (FSH  No. 17, hereinafter referred to as the "interpretation"), which provides for the conviction and sentencing standards and the application of relevant laws for crimes of obstructing the state (border) administration. Over the past ten years, people's courts, people's procuratorates, public security organs and immigration administration agencies at all levels have strictly applied the criminal law, the law on exit and entry administration and the provisions of the interpretation, severely punished the illegal crimes that obstructed the administration of the state (frontier) border, and effectively safeguarded the order of the state (frontier) administration and the vital interests of the people, and achieved good results.
With the economic and social development and the continuous deepening of China's opening up to the outside world, in recent years, there have been some new situations and characteristics in the crime of obstructing the national (border) border management. It is urgent to strengthen the governance of the behavior of impairing the national (border) border management. Specifically:（ 1) The rapid growth of cases has caused serious social harm. At present, the crime of impairing the management of the national border (border) is high and frequent, and shows an obvious growth trend. During the ten years from 2012 to 2021, the number of criminal cases of impairing the state (border) management tried by the national courts continued to grow. The number of cases and the number of effective judgments in 2021 increased by more than 10 times and 23 times respectively compared with 2012. The crime of hindering the management of national border (border) often interweaves with cross-border crime, impairs the order of economic and social development and the safety of people's personal and property, and has serious social harm; Since the outbreak of Xinguan epidemic, the "smuggling with epidemic" has increased the risk of imported epidemic situation from abroad, which has a significant adverse impact on China's epidemic prevention and control work and social stability in border areas. In 2021, the number of suspects who are suspected of obstructing the state (border) administration will be prosecuted by the national procuratorial organs, which is 3.3 times of 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 have been widened day by day; On the other hand, with the improvement of the prevention and combat level of the competent departments, the means of hindering the management of crimes at the national (border) border have been renovated, and the cases of transporting in sections and leading others to cross the border illegally on foot are gradually increasing. It is necessary to clarify the nature of these behaviors and how to deal with them. (3) There are regional differences and different treatment 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 km. Affected by the geographical characteristics of the relevant border areas, some illegal acts have obvious regional characteristics. There are some differences in the purpose, mode, frequency and the degree of harm to the order of national (border) management. In practice, the scale of handling related cases is not consistent, and the scale of legal policy needs to be further standardized.
In view of the new situation and new problems of crimes that hinder the administration of the state border (frontier), the Supreme People's court, together with the Supreme People's Procuratorate, the Ministry of public security and the State Administration for immigration, conducted in-depth investigations, extensively solicited opinions, and repeatedly demonstrated and perfected them. In particular, it fully absorbed the opinions and suggestions from the front-line of handling cases in high incidence areas of relevant cases, and formulated the opinions.
Q: please introduce the main considerations in the formulation of the opinions.
A: The opinions adhere to the guidance of Xi Jinping's thought of socialism with Chinese characteristics in the new era, thoroughly implement Xi Jinping's Thought on the rule of law, persist in punishing illegal and criminal activities that hinder the management of the state (border) border in accordance with the law, earnestly safeguard the management order of the state (border) and provide a strong legal guarantee for the high-level opening up. Specifically, in the process of formulation, the following points are focused on:
First, we should respond to the changes in the situation and strictly punish crimes according to law. Based on the current high incidence of crimes against the management of national (border) borders, especially the intertwined growth with cross-border gambling and telecom network fraud, as well as the actual situation of increasing the risk of overseas epidemic import, the opinions made efforts from all aspects of law enforcement and judicature to effectively strengthen the punishment of crimes against state (border) management, so as to effectively safeguard the national (border) security, We will thoroughly control cross-border crimes, build a strong defense line against epidemic diseases along the border, 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 application of the law to the crime of obstructing the administration of the frontier. For example, can illegal entry into China's non border areas be identified as illegal entry for foreigners who are restricted to stay or move in China's border areas "Illegally crossing the national border (frontier)"; Another example is whether the number of illegal cross-border behaviors is calculated separately or combined according to the entry and exit behaviors. Aiming at the prominent problems that perplex the practice, the opinions further refine and clarify the relevant provisions, pay attention to the standardization of law enforcement and judicial standards, and ensure the uniform and correct application of laws.
Third, highlight the key points of punishment The criminal policy should be carried out accurately. The "opinions" emphasize that the organization behavior and the ringleaders, principal criminals and active participants of criminal groups should be severely punished according to law. Through the "strict" policy requirements, the purpose of effectively curbing crimes and preventing crimes can be achieved. On this basis, the opinions of the people who are employed or used to engage in auxiliary work and do not directly implement the behavior of impairing the state (border) border management clearly do not investigate the criminal responsibility. Through the policy guidance of "Leniency", we can realize the adaptation of crime, responsibility and punishment, and ensure good results in case handling.
Q: the crime of organizing others to illegally cross the national (border) border is a key crime of impairing the management of the national (border) border. What are the provisions in the opinions?
A: In view of the prominent problems reflected in the current judicial practice, the opinion has made special provisions on the determination of the crime of organizing others to illegally cross the national (border) border. Generally speaking, there are three aspects as follows:
One is about organizing others The cognizance of the act of "holding a certificate" to defraud the approval of entry and exit. At present, it is common to use the visa free policies of China and other countries to organize the personnel who already hold exit and entry documents to cover up the purpose of illegal entry and exit by means of fabricating facts and concealing the true equality, so as to deceive the entry and exit approval by the entry and border inspection authorities, which has become an important way to hinder the national (border) management activities. In this regard, the "opinions" clearly states that the act of "holding a certificate" of such an organization defrauding the entry-exit border inspection authority's approval of entry-exit should be regarded as organizing others to illegally cross the border.
The second is about the organization of foreign border residents and other illegal entry into non border areas. In recent years, some people are driven by interests and take advantage of the convenient policy of border residents to organize foreign border residents 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 social management and economic order. In this regard, the "opinion" clearly stipulates that the illegal entry into China's non border areas by personnel who are legally limited to stay or carry out activities in China's border areas, in violation of the state (border) border management laws and regulations, should be identified as organizing others to illegally cross the border.
The third is to grasp the policy of criminal investigation of related behaviors. On the one hand, for The opinion limits the object of criminal regulation to organizational behavior. On the other hand, there are obvious differences in the degree of harm of illegal entry into the border area between the illegal personnel and non-border organizations. Some organizations organize foreigners to enter the country to engage in illegal labor services, while others organize Chinese citizens to take part in crimes such as telecommunication network fraud and gambling when they leave the country. Based on this, the opinion requires that "when deciding whether to investigate criminal responsibility and how to determine the penalty, we should comprehensively consider the circumstances of the organizer's criminal record, means of conduct, the number and frequency of the organization, the amount of illegal income and the purpose of the organized personnel to illegally cross the National (border) border, and properly deal with it according to law".
Q: the opinion details the determination of the crime of transporting others to cross the national (border) border. Please tell us something about it.
A: China has a long boundary and complicated geographical environment. Driven by interests, the crime of transporting others to cross the border is more frequent. In recent years, illegal elements in some border areas have been engaged in transporting and guiding others to enter and exit illegally by means of opening private channels and destroying border blocking facilities; Some illegal elements use such means as connection, shelter and concealment to illegally cross the border "Break up the whole into parts" and then carry out transportation; Some use vehicles, ships or walking to lead and so on alternately, frequently changing the transportation route, intending to escape the attack. With the development of the times, it is urgent to refine the standards for the identification of such crimes.
In this regard, the opinions mainly make the following provisions:（ 1) If a person who knowingly crosses the national (frontier) border and transports him to the national (frontier) border in sections, it shall be deemed as "transporting another person 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 another person to cross the national (frontier) illegally. (2) Those who lead others on foot to evade border inspection through concealed routes and illegally cross the national (frontier) border are classified as transporting others to cross the national (frontier) border illegally. (3) Punishment should be combined with education, and the number of people transported, illegal income and criminal record should be taken into consideration. The emphasis should be placed on punishing those who take it as a career, repeatedly punish repeated offenders, make huge profits, and other situations with major social harm.
Q: in recent years, the crime of illegally crossing the national (frontier) border has been on the rise. What detailed provisions have been made in the opinions on the crime of illegally crossing the national (frontier) border?
A: According to the provisions of the criminal law, the crime of illegally crossing the national (frontier) border in violation of the administrative laws and regulations of the state (frontier) is serious. In view of the motives, means and harmful consequences of the crime of illegally crossing the national (frontier) border in recent years, the opinions further clarify the identification of the crime of illegally crossing the national (border) border.
First, the destruction of physical separation facilities at the border will be regarded as illegal cross-border The application of "serious circumstances". In recent years, there have been cases of illegally crossing the border after deliberately destroying the wire fence, monitoring, alarm equipment and other border facilities in China's border areas, which seriously infringe on the border management order and cause major risks, so it is necessary to punish them according to law.
The second is to define the calculation rules of the number of times of illegally crossing the border. According to the provisions of the interpretation, illegally cross the national (border) border "More than three times" constitutes the crime of illegally crossing the border. The opinions further specified that the number of times of illegal exit and entry should be calculated respectively according to the number of illegal exit (border) and entry. At the same time, it also stipulated that "for those who return to the frontier in time after illegal cross-border, or surrender after entering the country illegally after leaving the country illegally, it should be counted as one time", and the calculation standard should be determined according to different situations, so as to realize the accurate attack according to law.
Third, yes The definition of "collusion" is made. "More than three persons join forces to illegally cross the national (border) border" is a "serious" situation. In view of the complexity of the practice, the opinions make it clear that those who illegally cross the national (border) border cooperate with each other and jointly steal the national (border) border, and those who occasionally travel together under the arrangement of organizers and transporters are not "ganged up", so as to further highlight the key points of punishment and realize the adaptation of criminal responsibility and punishment.
Q: at present, the crime of impairing the management of national (frontier) border is characterized by organization, internationalization and network. What are the specific provisions in the opinions?
A: From the perspective of case handling practice, the current crime of obstructing the administration of the national border (frontier) is indeed characterized by organization, internationalization and network. Criminal gangs control crimes, and their internal organization is tight and their division of labor is clear; Use it outside the country "Slang" and "secret language" contact to avoid the attack; False information is released on the Internet to lure and attract illegal immigrants. With the continuous renovation of criminal means, the way of crime is more hidden, and the difficulty of combating and controlling is increasing. In this regard, the opinions made targeted provisions from the following four aspects to further improve the Governance Efficiency:
One is to strengthen the punishment of joint crimes. According to the opinions, those who conspire with criminals who organize or transport others to illegally cross the national (border) border in advance and provide assistance such as connection, shelter and concealment before or after entering the country (frontier) shall be punished as a joint crime of organizing others to illegally cross the national (frontier) border or transporting others to cross the national (border) illegally.
The second is to improve the accuracy of the strike. The opinion emphasizes that the crime of organizing others to illegally cross the national (border) border shall be severely punished, and criminal punishment shall be carried out for the industrial chain that hinders the management of the national (border) border by adhering to the whole chain, whole link and whole process. As for the crime of illegally crossing the national (border) border, we should focus on punishing crimes committed across the border, repeatedly punishing repeated offenders, and other situations with major social harm. For criminal gangs and criminal groups that obstruct the administration of the state (frontier), priority should be given to the punishment of ringleaders, principal criminals and active participants.
Third, strengthen international cooperation in law enforcement and justice. According to the opinions, overseas evidence collected in accordance with international treaties or through criminal judicial assistance, police cooperation and other channels, which can prove the facts of a case and conform to the provisions of the criminal procedure law, can be used as evidence.
The fourth is to eradicate the economic basis of recidivism. According to the opinions, attention should be paid to the application of property punishment, the recovery of criminal proceeds and the confiscation of crime tools, so as to strengthen the enforcement of property punishment and deprive criminals of the ability and conditions of committing crimes again.
Q: after the publication of the opinions, What's the consideration of "two high schools, one department, one bureau" for implementation?
A: The opinion is To deepen the implementation of the central government's "one frontier and two border" crime control measures. In the next step, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security and the State Administration for immigration will give full play to their respective functions and functions, severely punish the illegal crimes that hinder the administration of the state (border) border in accordance with the law, and earnestly safeguard the order of state (border) administration and the safety of the people's personal and property.
First, handling cases in strict accordance with the law. We should take effective measures to guide local case handling organs to strictly implement the criminal law and relevant laws and regulations, accurately grasp the requirements of case handling policies, earnestly increase the intensity of punishment, handle the cases of organizing and transporting others to illegally cross the national (border) border according to law, highlight the key points of attack, highlight the stand of severe punishment, and respond to social concerns.
The second is to strengthen the link of execution. The two-way connection between administrative law enforcement and criminal justice should be done well. The cases suspected of interfering with the management of the national border (border) should be transferred to file for investigation in a timely manner, and administrative punishment should not replace criminal investigation. Those who are not prosecuted or exempted from criminal punishment for the relevant acts shall be given administrative, administrative or other sanctions according to law, and shall be transferred to the relevant competent authorities for handling according to law.
Third, promote source control and comprehensive management. We should further improve the comprehensive governance mechanism in the field of national (border) border management, assist relevant administrative departments to strengthen administrative law enforcement and social governance, promote the eradication of breeding ground for related cross-border crimes, and effectively prevent the occurrence of illegal crimes that hinder national (border) management from the source.
Fourth, strengthen the publicity of law popularization. Conscientiously implement The responsibility system of "who enforces the law, who popularizes the law", guides the masses to consciously abide by the laws and regulations on exit and Entry Administration in combination with the handling of relevant cases that hinder the administration of the frontier (frontier), jointly prevent cross-border crimes, safeguard the order of the country (border) and its own legitimate rights and interests, and ensure the security and stability of the border at the port.