Prosecutor's tip: travel abroad to purchase, don't break into the "minefield" of smuggling

"I love to travel during the holidays. For the upcoming "May Day" holiday, many people will choose to travel abroad, but there are still many friends who do not know that helping relatives and friends buy luxury bags, jewelry, and cosmetics may be suspected of smuggling if they are not careful. On 23 April, the Procuratorial Daily's Justice Network invited Huang Linglin, a senior procurator at the fourth level of the First Procuratorial Department of the Fourth Branch of the Beijing Municipal Procuratorate, to give the 41st public class for procurators.

Acts that may be suspected of smuggling in daily life (1):

Overseas purchasing

Overseas purchasing agents are quite popular, and purchasing advertisements can be seen everywhere in the circle of friends and social software, and even their relatives and friends have begun to start purchasing business. However, some overseas purchasing practices may constitute smuggling crimes, and Huang Linglin shared a real-life case.

Li is a young girl who has just graduated from school, but she didn't find a suitable job, so she decided to do overseas purchasing in the circle of friends. In August 2018, Li arrived at Beijing Capital International Airport by flight from abroad, chose to take the non-declaration channel when entering the country, did not declare any items to the customs, and was seized by the customs officers from his luggage cosmetics, clothing, e-cigarettes, watches and other items on the spot, and after identification and verification, the tax payable was more than 100,000 yuan, which violated Article 153 of the Criminal Law of the People's Republic of China and constituted the crime of smuggling ordinary goods. The investigating organ transferred the case for review and prosecution for the crime of smuggling ordinary goods.

Li regretted it very much after being arrested, and she said that she didn't know that the consequences of this overseas purchasing agent would be so serious. She knew that the customs did not allow the entry of excess goods, and if she brought excess goods into the country, she needed to pay customs duties, but she had also brought excess goods into the country many times before, and the customs was required to return the goods after they found it, so she privately thought that even if she was found to return the goods this time, she did not expect that it would violate the criminal law and constitute a crime.

Could it be that all overseas purchasing agents are illegal and criminal? Why was Li not transferred for prosecution last time?

Huang Linglin explained that according to Article 46 of the Customs Law of the People's Republic of China, "the baggage and articles carried by individuals entering and leaving the country and mailing them into and out of the country shall be limited to their own use and reasonable quantity, and shall be subject to customs supervision." The so-called "personal use" means that passengers use it for themselves or give it to relatives and friends, rather than selling it for profit. According to the Regulations of the People's Republic of China on the Implementation of Customs Administrative Penalties, if the quantity exceeds the reasonable amount for personal use, it shall be regarded as goods. That is to say, when you go abroad and return to China, you can only carry your own goods, and you can't carry goods for sale for profit, therefore, the items purchased overseas are all goods, and in accordance with the provisions of the Customs Law, they should be declared and paid taxes to the customs, and if you do not declare and pay taxes, they are all violations of the Customs Law, and you may be required to return the goods in the lightest case;

According to Article 153 of the Criminal Law of the People's Republic of China and Article 16 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Smuggling, if the amount of tax payable is more than 100,000 yuan, it constitutes the crime of smuggling ordinary goods, and criminal responsibility must be investigated in accordance with the law. The evasion of taxes of more than 100,000 yuan by the items carried by Li this time constitutes a crime. The last time Li was found to have been ordered to return the shipment, it may not have reached 100,000 yuan, so it was not transferred for prosecution.

Acts that may be suspected of smuggling in daily life (2):

Go abroad to help bring things for relatives and friends

If it is said that the purchase of goods overseas may constitute the crime of smuggling, then if it is to go abroad to bring things back to relatives and friends, and it is not for the purpose of making profits, will it constitute smuggling? "Although a passenger goes abroad to help relatives and friends buy things, it is not a purchasing agent, nor is it for the purpose of making profits, if he buys more things and deliberately fails to declare and pay taxes to the customs, it will also constitute a crime of smuggling and will be sentenced to a criminal penalty." Huang Linglin explained.

In May 2015, Gao traveled abroad. Friends asked Gao to help bring some luxury goods back to China, Gao readily agreed, and then bought a total of 68 goods such as watches, jewelry, bags and other luxury goods in foreign stores, stuffed with a large suitcase.

After entering the country, Gao saw the relevant tips and broadcasts of the customs in the terminal of the airport, and knew that passengers should take the initiative to declare and pay taxes to the customs, but Gao was lucky, and at the same time thought that he was just helping a friend to bring things, not making money, and was found by the customs to return at most.

Under the psychological effect of luck, Gao directly chose to clear customs through the undeclared channel, was stopped by the customs and seized on the spot, and finally sentenced to one year in prison for the crime of smuggling ordinary goods.

Acts that may be suspected of smuggling in life (3):

Go abroad and buy things for yourself

Going abroad to buy things and bring them back to China for your own use sounds reasonable, but is it possible that it will also constitute smuggling?

Huang Linglin introduced us to such a case, Liu followed a travel agency to travel abroad, and after arriving abroad, he found that foreign luxury goods were cheap, and the tour guide clearly told Liu that if he carried more than 5,000 yuan of goods, he needed to pay taxes to the customs. But Liu felt that he would buy a watch and a ring, all for his own use, even if he found out that he could make up a tax, and felt that these things were small, the ring was in his pocket, the watch was worn on his hand, and the watch box was placed in the box, and the customs would definitely not find it, so under such a fluke psychological effect, he bought a Vacheron Constantin watch, a Tiffany ring, a Cartier bracelet and an LV bag.

On August 16, 2016, Liu chose to take the channel without declaration when entering the country, did not declare any items to the customs, and was seized by the customs officers from his body and luggage on the spot 5 items such as watches, bags, rings, bracelets, suitcases, etc., and after identification and verification, the tax payable was 195,182.73 yuan. On August 22, 2019, the procuratorate indicted Liu for the crime of smuggling ordinary items, and on September 23, 2019, the court sentenced Liu to ten months in prison, suspended for one year, and fined 200,000 yuan for the crime of smuggling ordinary items.

"Go abroad to buy things, not only to pay taxes on behalf of purchases, but also to pay taxes on gifts to relatives and friends, even if they are brought back to China for their own use, if the value exceeds 5,000 yuan, they also need to declare and pay taxes, otherwise it will constitute an illegal act of smuggling, and if the tax evasion is more than 100,000 yuan, it will constitute the crime of smuggling ordinary goods and articles. Huang Linglin said.

Is it too dangerous to bring something back to your country?

Remembering these is key

What can I bring?

According to Article 46 of the Customs Law of the People's Republic of China, "the baggage and articles carried into and out of the country by individual and mailed into or out of the country shall be limited to their own use and reasonable quantity, and shall be subject to customs supervision." That is to say, individuals can only bring a small amount of items for their own use when entering and leaving the country. According to the provisions of the Regulations on the Implementation of Customs Administrative Penalties, the so-called "personal use" refers to the passenger's own use or gift to relatives and friends. If it is a commodity used for sale for profit, then it belongs to the goods, not the goods, and all must be declared and paid taxes to the customs.

How much can you bring?

"Reasonable quantity" means a normal quantity determined by Customs based on the circumstances of the passenger or recipient, the purpose of travel and the length of stay. According to the Regulations on Matters Concerning the Standards for the Inspection and Release of Baggage and Articles Carried by Inbound Passengers (Announcement No. 54 [2010] of the General Administration of Customs), if a resident passenger carries an article for personal use obtained abroad, the total value of which is less than RMB 5,000 (including RMB 5,000) will be released by the Customs for duty-free if the total value of the article for personal use is carried by a non-resident passenger who intends to stay in China with a total value of less than RMB 2,000 (including RMB 2,000). That is to say, for Chinese residents, the value of the items carried for personal use cannot exceed 5,000 yuan, and there is no need to pay tax within 5,000 yuan, and more than 5,000 yuan must be declared and paid to the customs.

Under what circumstances may a smuggling offence be constituted?

According to Article 153 of the Criminal Law of the People's Republic of China and Article 16 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Smuggling, if the amount of tax payable is more than 100,000 yuan, the crime of smuggling ordinary goods is constituted. The mainland's tax rate on luxury goods is relatively high, and the comprehensive tax rate of various taxes on some precious luxury goods can reach 50%, such as watches, if you buy hundreds of thousands of expensive watches, it is likely that the tax payable will exceed 100,000 yuan, then it is possible to take a watch to evade 100,000 yuan in taxes, and if you deliberately do not declare and pay taxes to the customs, it may constitute a crime of smuggling.

Smuggling evasion of customs supervision will cause a large loss of state tax revenue, seriously endanger state finances, and seriously damage national economic interests. The prosecutor reminds all those who travel that luck is an important incentive to commit crimes. Don't take chances, play clever tricks to evade customs supervision, go abroad to buy goods, especially luxury goods, must remember to declare and pay taxes to the customs, otherwise not only will the items be confiscated, but you will also face fines, fines and even criminal penalties. I wish you all a good time during the May Day holiday, and you can be safe and secure when you return home.

Text: Siqi Xie

Source: Procuratorate Daily Justice Network