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No. 1 Branch of the People's Procuratorate of Shanghai Municipality v. Ying Zhimin and Lu Yi (Case of smuggling waste and smuggling ordinary goods)
上海市人民检察院第一分院诉应志敏、陆毅走私废物、走私普通货物案
【法宝引证码】

No. 1 Branch of the People's Procuratorate of Shanghai Municipality v. Ying Zhimin and Lu Yi (Case of smuggling waste and smuggling ordinary goods)
上海市人民检察院第一分院诉应志敏、陆毅走私废物、走私普通货物案
[核心术语]
非法利益;固体废物;走私废物
[争议焦点]
1.行为人为牟取非法利益,违反海关法规,逃避海关监管,明知是国家禁止进口的固体废物仍采用伪报品名方式将固体废物走私入境,其行为如何论处?
[案例要旨]
走私废物罪,是指违反海关法规和国家关于固体废物、液态废物、气态废物管理的规定,逃避海关监管,将境外固体废物、液态废物、气态废物运输进境的行为。该罪侵犯的客体是海关监管制度和国家禁止固体废物、液态废物和气态废物进境的制度;客观方面表现为违反海关法规和国家有关规定,逃避海关监管,将境外的固体废物、液态废物、气态废物运输进境;犯罪主体为一般主体,;主观方面由故意构成。由此可知,行为人为牟取非法利益,违反海关法规,逃避海关监管,明知是国家禁止进口的固体废物仍采用伪报品名方式将固体废物走私入境, 其行为已构成走私废物罪,应当依据《中华人民共和国刑法》第一百五十二条第二款之规定惩处。
No. 1 Branch of the People's Procuratorate of Shanghai Municipality v. Ying Zhimin and Lu Yi (Case of smuggling waste and smuggling ordinary goods) 上海市人民检察院第一分院诉应志敏、陆毅走私废物、走私普通货物案
[Summary] [裁判摘要]
In a case of smuggling crime, whether the actor is with intent to smuggle concealed articles shall be comprehensively judged based on the circumstances of the case. If the actor is without general intent of smuggling and has no knowledge that another type of smuggled articles are concealed in the smuggled articles, combined punishment for more than one crime may not be imposed according to the provisions of relevant normative documents on "conviction and punishment based on the actual object of smuggling," but the actor shall be convicted and punished based on his or her recognition of the nature of the object of smuggling according to the principle of unity between subjectivity and objectivity. The objective smuggling of other concealed articles, if any, may be assessed as the circumstances in sentencing for the specific smuggling crime committed by the actor, so as to reflect the principle that crime, responsibility and punishment fit each other. 在走私犯罪案件中,应当根据案情综合判断行为人对夹藏物品是否具有走私的故意。行为人不具有走私的概括故意,对于走私物品中还夹藏有其他不同种类走私物品确实不明知的,不能适用相关规范性文件中“根据实际的走私对象定罪处罚”的规定进行数罪并罚,而应当根据主客观相统一原则,以行为人主观认知的走私对象性质加以定罪处罚。对于客观上走私了夹藏的其他物品的,可作为行为人所构成特定走私犯罪的量刑情节予以评价,以体现罪责刑相适应原则。
The public prosecution: No. 1 Branch of the People's Procuratorate of Shanghai Municipality. 公诉机关:上海市人民检察院第一分院。
Defendant: Ying Zhimin, male, 33 years of age, Han nationality, residing in Wulian Road, Pudong New District, Shanghai. He was sentenced to a fixed-term imprisonment of two years for smuggling ordinary goods in September 2008, and he was released in November 2009, after serving the sentence; and he was arrested on suspicion of smuggling ordinary goods on May 6, 2011. 被告人:应志敏,男,33岁,汉族,住上海市浦东新区五莲路。2008年9月因犯走私普通货物罪被判处有期徒刑二年,2009年11月刑满获释;2011年5月6日因涉嫌犯走私普通货物罪被逮捕。
Defendant: Lu Yi, male, 32 years of age, Han nationality, residing in Zhaoqiao Village, Caolu Town, Pudong New District, Shanghai. He was arrested on suspicion of smuggling ordinary goods on May 6, 2011. 被告人:陆毅,男,32岁,汉族,住上海市浦东新区曹路镇赵桥村。2011年5月6日因涉嫌犯走私普通货物罪被逮捕。
The No. 1 Branch of the People's Procuratorate of Shanghai Municipality filed a public prosecution against defendants Ying Zhimin and Lu Yi for committing the crime of smuggling waste and the crime of smuggling ordinary goods with the No. 1 Intermediate People's Court of Shanghai Municipality. 上海市人民检察院第一分院以被告人应志敏、陆毅犯走私废物罪和走私普通货物罪,向上海市第一中级人民法院提起公诉。
According to the indictment, in March 2011, defendants Ying Zhimin and Lu Yi imported five shipments of waste electronic products and other goods by means of falsely reporting the name of the articles, in the manner of importation filing, in order to obtain illegal benefits. Among the above-mentioned goods, as identified, the imported waste circuit boards and waste batteries, totaling 32.29 tons, were hazardous solid waste of which the import was prohibited by the state; waste photocopiers, printers, and computers, among others, totaling 349.812 tons, were non-hazardous solid waste of which the import was prohibited by the state; silicon scraps, totaling 7.27 tons, were solid waste usable as raw materials of which the import was restricted by the state; and as approved, the imported goods including tape and bearings on which a tax payable of more than 740,000 yuan (RMB, the same below) was evaded. In the opinion of the public prosecution, Ying Zhimin and Lu Yi violated customs regulations, circumvented customs supervision, and imported solid waste in excess of 389 tons by means of falsely reporting the name of the articles and ordinary goods on which a tax payable of more than 740,000 yuan was evaded, their conduct constituted the crime of smuggling waste and the crime of smuggling ordinary goods, the circumstances were particularly serious, and the evaded tax payable was particularly large. Ying Zhimin was also a recidivist. The No. 1 Intermediate People's Court of Shanghai Municipality was requested to pass sentence according to the law. 起诉书指控:2011年3月,被告人应志敏、陆毅为牟取非法利益,采用伪报品名的方式,通过进境备案的手段进口5票废旧电子产品等货物。上述货物中,经鉴别,进口废旧线路板、废电池共32.29吨,属国家禁止进口的危险性固体废物;废旧复印机、打印机、电脑等共349.812吨,属国家禁止进口的非危险性固体废物;硅废碎料共7.27吨,属国家限制进口的可用作原料的固体废物;经核定,进口胶带、轴承等普通货物偷逃应缴税额人民币74万余元(以下币种同)。公诉机关认为,应志敏、陆毅违反海关法规,逃避海关监管,采用伪报品名的方式进口固体废物逾389吨、进口普通货物偷逃应缴税额74万余元,其行为已构成走私废物罪、走私普通货物罪,且情节特别严重,偷逃应缴税额特别巨大;应志敏还系累犯。提请上海市第一中级人民法院依法判处。
Defendant Ying Zhimin and his defender had no objection to the facts, evidence and counts in relation to the prosecution and accusation that Ying Zhimin committed the crime of smuggling waste. His defender argued that Ying Zhimin was not guilty of the crime of smuggling ordinary goods, on the grounds that respective convictions and combined punishment for more than one crime could not be based simply on the objective condition of the containerized goods; that Ying Zhimin et al. were, instead of suppliers or consignees (or owners of goods), only import agents mainly responsible for the customs clearance business for the waste electronic products, had no knowledge that imported tape, bearings and other ordinary goods were concealed in the waste electronic products he smuggled, and thus was subjectively without intent to smuggle ordinary goods; and that since Ying Zhimin, as an accessory who confessed, had not caused actual harmful consequences, the court was requested to impose a lesser punishment on him. 被告人应志敏及其辩护人对起诉指控应志敏犯走私废物罪的事实、证据、罪名均无异议。其辩护人辩称:应志敏的行为不构成走私普通货物罪。理由是:不能简单依据货柜中货物的客观状况分别定罪并实行数罪并罚;应志敏等人并非货源组织者,也非收货人(或者非货主),仅作为代理进口商主要负责废旧电子产品的通关业务,并不明知其所走私的废旧电子产品中还夹藏进口胶带、轴承等普通货物,故其主观上不具有走私普通货物的故意;应志敏系从犯,具有坦白情节,且未造成实际危害后果,请求法院依法对其从轻处罚。
Defendant Lu Yi and his defender had no objection to the facts, evidence, and counts in relation to the prosecution and accusation that the conduct of Lu Yi constituted the crime of smuggling waste. His defender argued that as Lu Yi knew only of smuggling waste electronic products, instead of ordinary goods concealed in the waste electronic products, his conduct did not constitute the crime of smuggling ordinary goods; and that Lu Yi confessed, actively returned illicit property, and had not caused actual harmful consequences, the court was requested to impose lesser punishment on him according to the law. 被告人陆毅及辩护人对起诉指控陆毅的行为构成走私废物罪的事实、证据、罪名均无异议。其辩护人辩称:陆毅仅明知走私废旧电子产品,而不明知废旧电子产品中夹藏有普通货物,故其行为不构成走私普通货物罪;陆毅具有坦白情节,积极退赃,且未造成实际危害后果,请求法院依法对其从轻处罚。
The No. 1 Intermediate People's Court of Shanghai Municipality ascertained the following at first instance: 上海市第一中级人民法院一审查明:
In April 2010, defendants Ying Zhimin and Lu Yi conspired to be responsible for the customs clearance and transportation of smuggled waste electronic products for another person by falsely reporting the name of articles and other means for the purpose of obtaining illegal benefits and calculated their charges according to the quantity of waste electronic products imported. Since June the same year, Ying Zhimin and Lu Yi et al. had jointly engaged in the aforesaid smuggling activities in accordance with their prior division of labor. 2010年4月,被告人应志敏、陆毅为谋取非法利益而共谋采用伪报品名等方法为他人负责办理走私废旧电子产品中的通关和运输事宜,并按照废旧电子产品进口数量计算报酬。自同年6月起,应志敏、陆毅等人按事先分工共同从事上述走私活动。
On April 1, 2011, the Anti-smuggling Department of the Shanghai Customs District seized and detained 20 containers containing smuggled articles imported by defendants Ying Zhimin and Lu Yi under the guise of corrugated board. As counted, tallied and identified, the said smuggled articles were mainly waste circuit boards and batteries that were hazardous waste, totaling 32,290 kg; waste copiers, printers and computers, among others, that were solid waste of which the import was prohibited by the state, totaling 349,812 kg; silicon scraps that were solid waste usable as raw materials of which the import was restricted by the state, totaling 7,270 kilograms; and several tons of general goods including tape, sewing machine heads for non-household use and bearings scattered in various containers, subject to a tax of more than 700,000 yuan. 2011年4月1日,上海海关缉私部门查封、扣押了20个由被告人应志敏、陆毅以瓦楞纸板名义进口的装有走私物品的集装箱。经清点、理货和鉴别,上述走私货物主要为:属于危险类废物的废旧线路板、废电池等共计32 290公斤;属于国家禁止进口的固体废物的废旧复印机、打印机、电脑等共计349 812公斤;属于国家限制进口的可用作原料的固体废物的硅废碎料共计 7270公斤;另有胶带、非家用缝纫机头、轴承等普通货物若干吨,分散在各集装箱内,涉及税额人民币70余万元。
On April 2, 2011, defendants Ying Zhimin and Lu Yi were arrested and truthfully confessed to the above facts. In addition, the Anti-smuggling Department of the Shanghai Customs District recovered an illicit sum of money amounting to 3 million yuan. 2011年4月2日,被告人应志敏、陆毅被抓获,并如实供述了上述事实。此外,上海海关缉私部门追缴赃款人民币300万元。
The above facts established by evidence presented and cross-examined before court such as confessions given by defendants Ying Zhimin and Lu Yi, witness testimony, documentary evidence, physical evidence and written authentication were sufficient for determination. 上述事实,有经庭审举证、质证的被告人应志敏、陆毅的供述、证人证言、书证、物证、鉴定书等证据证实,足以认定。
The issues of the case were how to determine whether actors were with intent to smuggle the concealed articles in the smuggling case; and when the actors were without general intent of smuggling and had no knowledge of the ordinary goods concealed in the object of smuggling, whether combined punishment for the crime of smuggling waste and the crime of smuggling ordinary goods should be imposed according to the provisions of relevant normative documents on conviction and punishment based on the actual object of smuggling. 本案的争议焦点是:走私案件中如何认定行为人对夹藏物品是否具有走私故意;行为人不具有走私的概括故意,对走私对象中夹藏的其他普通货物确实不明知,是否适用相关规范性文件中根据实际走私对象定罪处罚的规定,以走私废物罪和走私普通货物罪数罪并罚。
The No. 1 Intermediate People's Court of Shanghai Municipality held the following at first instance: 上海市第一中级人民法院一审认为:
Since defendants Ying Zhimin and Lu Yi handling customs clearance and transportation matters for another person did not know that the owner of the smuggled goods also concealed ordinary goods in waste electronic products, the two defendants should not assume the criminal liability for the crime of smuggling ordinary goods in relation to the ordinary goods concealed by the owner of goods. The main grounds were as follows: 由于代理通关和运输事宜的被告人应志敏、陆毅并不明知走私货主在废旧电子产品中还夹藏了其他普通货物,因此,二被告人不应当对货主所夹藏的普通货物承担走私普通货物罪的刑事责任。主要理由在于:
First, in a case of smuggling crime, whether the actor was with intent to smuggle concealed articles should be comprehensively determined based on the relevant contract, the owner and volume of the concealed articles, the remuneration received by the actor and other circumstances. 首先,在走私犯罪案件中,应当根据相关合同约定、夹藏物品归属主体及所占体积、行为人所收报酬等情况综合认定行为人对夹藏物品是否具有走私的故意。
In a case of smuggling crime, the subjective intent of the actor could not be determined simply by the types of articles seized during the smuggling process, and whether the actor was with intent to smuggle concealed articles should be comprehensively determined based on the relevant contract, the owner and volume of the concealed articles, the remuneration received by the actor and other circumstances. 在走私犯罪案件中,行为人的主观故意内容,不能简单以走私过程中查获的物品种类进行认定,而应当根据相关合同约定、夹藏物品的归属主体及所占体积、行为人所收报酬等情况综合认定行为人对夹藏物品是否具有走私的故意。
In the case, the criminal investigation authority and the public prosecution failed to find a written contract by which defendants Ying Zhimin and Lu Yi handled customs clearance procedures for the waste electronic products, the two defendants' confessions that they had no knowledge of the concealed articles were completely consistent, and taking into account the following facts, it was sufficient to determine that the two defendants was without intent to smuggle the concealed articles: (1) The owner of the concealed articles. Ying Zhimin and Lu Yi were, instead of suppliers or consignees (or owners of goods), only import agents mainly responsible for the customs clearance and transportation of the waste electronic products to the owner, and thus their lack of knowledge of the imported tape, bearings and other articles seized in the case was not against common sense. (2) The space filled by the concealed articles. The two defendants smuggled more than 380 tons of electronic waste in total. Although the goods such as bearings and sewing machine seized in the case amounted to more than 20 tons, the density of such goods was high, the volume of a single article was small, and the goods were scattered in various containers and filled a small portion of space, rendering themselves inconspicuous. For that reason, it was not against common sense that the two defendants failed to discover the concealed articles during the smuggling of waste. (3) Behavioral remuneration standards. The two defendants received remuneration from the owner of goods based on the quantity of waste electronic products imported, which were not linked to the benefits gained from the concealed smuggled articles. This was the most convincing evidence that the two defendants were without intent to smuggle the concealed articles. 本案中,侦查机关和公诉机关未查获到有关被告人应志敏、陆毅为废旧电子产品代办通关手续的书面合同,但二被告人关于不明知夹藏物品的口供完全一致,且综合以下事实足以认定二被告人对夹藏物品不具有走私的故意:1.从夹藏物品归属主体分析。应志敏、陆毅并非货源组织者,也非货主、收货人,仅为货主负责废旧电子产品的通关业务和运输,其对本案查获的进口胶带、轴承等物品不知情,并不违背常理。2.从夹藏物品所占空间分析。二被告人共走私废旧电子废物380余吨。虽然本案查获的轴承、缝纫机等货物达20多吨,但该类货物密度大,单一物品所占体积较小,又分散在各集装箱,整体所占空间比例相当小,不容易让人发现,故二被告人在走私废物过程未发现夹藏物品亦符合常理。3.从行为报酬标准分析。二被告人均是按照废旧电子产品进境的数量向货主收取报酬,而与走私夹藏物品所获利益不挂钩。这是认定二被告人对夹藏物品不具有走私故意最有说服力的证据。
Second, the provisions of relevant normative documents on "conviction and punishment shall be based on the actual object of smuggling" only applied to general intent. In the absence of general intent of smuggling and knowledge of other goods concealed in the object of smuggling, a smuggling crime should not be separately recognized with respect to the concealed goods according to the principle of unity between subjectivity and objectivity. 其次,相关规范性文件关于“应当根据实际的走私对象定罪处罚”的规定仅适用于概括故意情形。不具有走私的概括故意,对走私对象中夹藏的其他货物确实不明知的,根据主客观相统一原则,就夹藏的货物部分不应另行认定为走私犯罪。
Article 6 of the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Smuggling jointly issued by the Supreme People's Court, the Supreme People's Procuratorate and the General Administration of Customs in 2002 provided: "Where a suspect for smuggling crime is subjectively with intent to commit smuggling crime, but has an unclear understanding of the specific articles he or she smuggles, the commission of the smuggling crime is not affected, and conviction and punishment shall be based on the actual object of smuggling." The Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Smuggling (II) (hereinafter referred to as the "Interpretation (II)") issued by the Supreme People's Court in 2006 further clarified the issue. Article 5 of the Interpretation (II) provided: "Anyone who commits a crime due to concealing any goods or articles as mentioned in Article 151, 152, 347 or 350 of the Criminal Law in the ordinary goods, articles or waste smuggled shall be convicted and punished on the basis of the goods or articles actually smuggled. If several crimes are constituted, he shall be punished by combining these crimes together." "convicted and punished on the basis of the goods or articles actually smuggled" in the above normative document was applicable only to the commission of crime with general intent: (1) in terms of conscientiousness, the actor had no clear understanding of the specific smuggled articles; and (2) in terms of will, the actor had no objection to the actual object of smuggling and did not care about their existence. In addition, the term "concealing" in Article 5 of the Interpretation (II) qualified conduct. "Concealing" is conscious hiding, and the actor had or should have a certain understanding of the hidden things subjectively when hiding the things, to wit, he or she subjectively had knowledge of the hidden things. If there was a lack of knowledge of other object of smuggling among the smuggled ordinary goods, articles or waste, the circumstances specified in the above normative documents were not applicable. 最高人民法院、最高人民检察院、海关总署2002年联合印发的《关于办理走私刑事案件适用法律若干问题的意见》第六条规定:“走私犯罪嫌疑人主观上具有走私犯罪故意,但对其走私的具体对象不明确的,不影响走私犯罪构成,应当根据实际的走私对象定罪处罚。”最高人民法院2006年出台的《关于审理走私刑事案件具体应用法律若干问题的解释(二)》(以下简称解释二)对此作了进一步明确。解释二第五条规定:“对在走私的普通货物、物品或者废物中藏匿刑法一百五十一条、第一百五十二条、第三百四十七条、第三百五十条规定的货物、物品,构成犯罪的,以实际走私的货物、物品定罪处罚;构成数罪的,实行数罪并罚。”上述规范性文件确定的“以实际走私的货物、物品定罪处罚”仅适用于概括故意犯罪情形:一是意识上,行为人对走私具体对象没有明确指向;二是意志上,行为人对实际走私对象不反对,有没有都无所谓。此外,解释二第五条规定的“藏匿”一词已将行为进行了限定。“藏匿”是一种有意识地隐藏行为,行为人主观上在隐藏之时对所隐藏之物就具有或者应当具有一定的认识,即对所隐藏之物主观上明知。如果对走私的普通货物、物品或者废物中查出的其他走私对象不明知,则不能适用上述规范性文件规定的情形。
According to the principle of unity between subjectivity and objectivity, a determination that an actor committed a crime required that the actor objectively commit an act seriously harmful to society and that the actor be subjectively culpable to certain extent for the harmful act committed. Smuggling crimes were intentional crimes. A smuggler subjectively knew or should know that his or her cross-border transportation or movement of goods was an act of evading customs supervision. In a generally intentional smuggling crime, the actor was unsure about the specific object of smuggling, but he or she had a general understanding of the overall object of smuggling, to wit, it was in the scope of the object of evading customs supervision; and in a non-generally intentional crime, the actor objectively knew or should know that his or her cross-border transportation or movement of specific articles was an act of evading customs supervision. If other articles were discovered in the object of his or her smuggling, the other articles were against his or her will. Therefore, if an actor was with general intent of smuggling, it was not inappropriate to convict and punish him or her based on the actual smuggled articles; but if the actor was without such general intent, it was against the principle of unity between subjectivity and objectivity to convict and punish him or her based on the actual smuggled articles. 根据主客观相统一原则,认定行为人构成犯罪,除了要求行为人客观上实施了具有严重社会危害的行为,还要求行为人主观上对所实施的危害行为具有一定的罪过。走私犯罪是故意犯罪,走私行为人主观上必须知道或者应当知道其跨境运输或者携带货物是逃避海关监管的行为。在概括的故意走私犯罪中,行为人虽然不确定具体的走私对象,但对所走私的整体对象有一个概括性的认识,即都属于逃避海关监管的对象范围;在非概括的故意犯罪中,行为人主观上必须知道或者应当知道其跨境运输或者携带具体物品是逃避海关监管的行为。如果在其走私的对象中发现其他物品的,则违背其意志。因此,如果行为人具有走私的概括故意,对其以实际走私的物品定罪处罚并无不妥;但是如果行为人不具有走私的概括故意,对其以实际走私的物品定罪处罚则违背了主客观相统一原则。
The on-record evidence in the case established that Ying Zhimin and Lu Yi were subjectively with clear intent to smuggle waste electronic products into the country, to wit, the two defendants subjectively knew that the object of smuggling they were assisting in was waste electronic products, and that the two defendants never knew and was unable to know that the smuggled goods contained other ordinary goods. In other words, the on-record evidence was unable to establish that the two defendants subjectively held a permitting attitude towards that the object of smuggling contained ordinary goods, which confirmed that the two defendants were without general intent of smuggling. On the premise of determining that Ying Zhimin and Lu Yi were without subjective intent of smuggling ordinary goods, it was manifestly objective imputation to determine that Ying Zhimin and Lu Yi committed two crimes, to wit, the crime of smuggling ordinary goods and the crime of smuggling waste, based only on that the waste electronic products they smuggled were mixed with ordinary goods. 本案在案证据证实,应志敏、陆毅主观上具有走私废旧电子产品入境的明确故意,亦即二被告人主观上明确知道其帮助走私的对象是废旧电子产品,二被告人自始至终都不知道也无法知道走私的货物中含有其他普通货物。即在案证据无法证实二被告人对走私对象中含有普通货物主观上具有放任态度,由此证实二被告人不具有走私的概括故意。在确定应志敏、陆毅缺乏走私普通货物主观故意的前提下,仅凭其走私的废旧电子产品中混有普通货物,认定应志敏、陆毅构成走私普通货物罪与走私废物罪两个罪名,显然属于客观归罪。
Finally, the objective smuggling of other articles concealed might be assessed as the circumstances in sentencing for the particular smuggling crime committed by an actor, so as to reflect the principle that crime, responsibility and punishment fit each other. 最后,对于客观上走私了夹藏的其他物品,可作为行为人所构成特定走私犯罪的量刑情节予以评价,以体现罪责刑相适应原则。
Based on the above analysis, defendants Ying Zhimin and Lu Yi subjectively did not know of the ordinary goods concealed in the waste, and their conduct did not separately constitute the crime of smuggling ordinary goods, but the act of smuggling performed by the two defendants objectively enabled the ordinary goods worth more than 700,000 yuan enter the country smoothly together. Although the associated consequence did not affect the nature of the crime, it was unreasonable to completely ignore the assessment of the associated consequence and make no distinction from a case without the associated consequence. On that basis, it might be used as circumstances in sentencing for the crime of smuggling waste, and greater punishment should be imposed according to the circumstances, so as to reflect the principle that crime, responsibility and punishment fit each other. 基于上述分析,虽然被告人应志敏、陆毅主观上不明知废物中夹藏有普通货物,其行为不再另行构成走私普通货物罪,但是二被告人实施走私的行为客观上使70余万元的普通货物一并顺利入境,这种关联后果虽然不影响罪质,但完全置之不予评价,与没有此种关联后果的相区别,也不合理。据此,可以将之作为走私废物罪的量刑情节,酌情从重处罚,以体现罪责刑相适应原则。
In summary, defendants Ying Zhimin and Lu Yi violated customs regulations, evaded customs supervision, and smuggled more than 380 tons of solid waste into the country by means of falsely reporting the name of the goods, in the knowledge that the import of the solid waste was prohibited by the state, for the purpose of obtaining illegal benefits. Their conduct constituted the crime of smuggling waste and was with particularly serious circumstances. They should be sentenced to a fixed-term imprisonment of not less than five years, in addition to a fine. Although the two defendants were not the owner of the case-related solid waste, they were jointly responsible for completing the customs clearance and transportation of the case-related solid waste, played a major role in the joint smuggling crime, and could not be determined as accessories according to the law. Ying Zhimin committed a new crime for which he should be sentenced to a fixed-term imprisonment or a greater punishment within five years after serving the sentence of a fixed-term imprisonment of two years, and he should be determined as a recidivist by law. The two defendants truthfully confessed to the facts of crime after being arrested in the case, and they should be determined to have confession circumstances according to the law. In view of the fact that the case-related smuggled goods were detained, no actual harm had been caused, and all the relevant illicit money had been recovered, in light of the actual circumstances of smuggling by the two defendants, Ying Zhimin should receive greater punishment according to the law, and Lu Yi should receive lesser punishment. The public prosecution's prosecution and accusation that the conduct of the two defendants constituted the crime of smuggling waste should be supported. The defenders' statement that the conduct of defendants did not constitute the crime of smuggling ordinary goods and that defendants had confession circumstances and their other defense opinions were justified by the law and should be adopted. 综上,被告人应志敏、陆毅为牟取非法利益,违反海关法规,逃避海关监管,明知是国家禁止进口的固体废物仍采用伪报品名方式将380余吨固体废物走私入境,其行为构成走私废物罪,且属于情节特别严重,应当判处五年以上有期徒刑,并处罚金。二被告人虽非涉案固体废物的货主,但共同负责完成涉案固体废物的通关和运输事宜,在共同走私犯罪中起主要作用,依法不能认定为从犯。应志敏在被判处有期徒刑两年的刑罚执行完毕后五年内又犯应当判处有期徒刑以上刑罚之新罪,依法应当认定为累犯。二被告人到案后均能如实供述犯罪事实,依法应当认定具有坦白情节。鉴于涉案走私货物均被扣押,尚未造成实际危害,且相关赃款均已被追缴,并结合二被告人的实际走私情况,依法对应志敏从重处罚,对陆毅从轻处罚。公诉机关起诉指控二被告人的行为构成走私废物罪的罪名成立,应予支持。辩护人所提二被告人的行为不构成走私普通货物罪和具有坦白情节等辩护意见于法有据,应予采纳。
Accordingly, the No. 1 Intermediate People's Court of Shanghai Municipality rendered a judgment as follows, in accordance with paragraph 2 of Article 152, paragraph 1 of Article 25, Article 56, Article 64, paragraph 1 of Article 65, and paragraph 3 of Article 67 of the Criminal Law of the People's Republic of China and Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Smuggling (II), on March 9, 2012: 据此,上海市第一中级人民法院依照《中华人民共和国刑法》第一百五十二条我不休息我还能学第二款、第二十五条第一款、第五十六条、第六十四条、第六十五条第一款、第六十七条第三款和最高人民法院《关于审理走私刑事案件具体应用法律若干问题的解释 (二)》第七条之规定,于2012年3月9日判决如下:
I. Defendant Ying Zhimin, convicted of smuggling waste, should be sentenced to a fixed-term imprisonment of ten years and deprived of political rights for three years, in addition to a fine of 100,000 yuan. 一、被告人应志敏犯走私废物罪,判处有期徒刑十年,剥夺政治权利三年,并处罚金人民币十万元;
II. Defendant Lu Yi, convicted of smuggling waste, should be sentenced to a fixed-term imprisonment of nine years and deprived of political rights for two years, in addition to a fine of 100,000 yuan. 二、被告人陆毅犯走私废物罪,判处有期徒刑九年,剥夺政治权利二年,并处罚金人民币十万元。
III. The recovered illicit money and detained smuggled goods should be confiscated. 三、追缴到的赃款和扣押的走私货物均予以没收。
After the first-instance judgment was pronounced, neither of defendants Ying Zhimin and Lu Yi filed an appeal within the statutory period, and nor did the procuratorial authority. The judgment had become legally effective.来自北大法宝 一审宣判后,被告人应志敏、陆毅在法定期间内均未提出上诉,检察机关也未提出抗诉,判决已发生法律效力。
     
     
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