Opinions on Lawfully Punishing Illegal and Crimes Obstructing State (Border) Management

 Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration on Issuing the "Opinions on Legally Punishing Illegal and Crimes Obstructing State (Border) Management"

  The higher people's courts, people's procuratorates, and public security departments (bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Courts and Military Procuratorates of the People's Liberation Army; the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region; the People's Procuratorate and Public Security Bureau of the Xinjiang Production and Construction Corps; Checkpoints:

  In order to punish illegal and criminal activities that obstruct national (border) management in accordance with the law, and effectively maintain the national (border) management order and the safety of people's personal and property, in accordance with the "Criminal Law of the People's Republic of China" and the provisions of relevant laws and judicial interpretations, combined with law enforcement and judicial interpretations. In practice, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the National Immigration Administration jointly formulated the "Opinions on Punishing Crimes that Obstruct State (Border) Management According to Law".

It is hereby issued, please implement it in accordance with 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 of any new situations and problems encountered in the implementation in a timely manner.

  Supreme People's Court Supreme People's Procuratorate

  Ministry of Public Security National Immigration Administration

  June 29, 2022

 Opinions on Lawfully Punishing Illegal and Crimes Obstructing State (Border) Management

  In order to punish illegal and criminal activities that obstruct national (border) management according to the law, and effectively maintain the national (border) management order, in accordance with the Criminal Law of the People's Republic of China, Criminal Procedure Law of the People's Republic of China, Exit and Entry Administration Law of the People's Republic of China, and Supreme Interpretation of the People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Obstructing State (Border) Administration (Fa Shi [2012] No. 17, hereinafter referred to as the "Interpretation") and other relevant provisions, formulated in combination with law enforcement and judicial practice this opinion.

1. General requirements

  1. In recent years, there has been a high incidence of illegal and criminal activities that impede national (border) management, intertwined with cross-border gambling, telecommunication network fraud, and illegal and criminal activities such as drugs, smuggling, violence and terrorism in border areas, and seriously disrupt national (border) activities. environmental management order, threatening public security and the safety of people's personal and property.

People's courts, people's procuratorates, public security organs and immigration management agencies should further improve their political positions, deeply understand the serious social harm of crimes that obstruct national (border) management, give full play to their respective functions, and accurately identify obstacles to national (border) borders in accordance with the law. Manage criminal acts, improve the procedures for law enforcement, investigation, prosecution, and trial, increase punishment for organizers, transporters, key members of criminal groups, and repeat offenders, minimize the ability of criminals to re-offend, and effectively safeguard the country. (Border) management order, ensure social security and stability, protect the vital interests of the people, and strive to achieve the organic unity of legal and social effects in case handling.

2. Determination of the crime of obstructing national (border) management

  2. In any of the following circumstances, it shall be identified as "organizing others to smuggle across the country (border)" as stipulated in Article 318 of the Criminal Law:

  (1) Organizing others to cover up the purpose of illegal entry and exit by fabricating facts, concealing the truth, etc., and deceiving the exit and entry border inspection agencies to approve entry and exit;

  (2) Organizing persons who are legally restricted to stay and operate in border areas of my country, violate national (border) management regulations, and illegally enter non-border areas of my country.

  For the above-mentioned acts, when deciding whether to investigate criminal responsibility and how to determine the penalty, the organizer's previous criminal record, the means of behavior, the number and frequency of the organization, the amount of illegal gains, and the purpose of the organized personnel to sneak across the country (border) should be comprehensively considered. , deal with it properly in accordance with the law.

  3. Conspiring in advance with criminals who organize or transport others to cross the country (border) without permission, and provide assistance such as connection, accommodation, hiding, etc. before the person who smuggles across the country (border) exit or after entering the country, in order to organize others The crime of illegally crossing the country (border) border or the crime of transporting others to cross the country (border) border illegally is punished as a joint crime.

  4. Anyone who knows that they are illegally crossing the country (border) border and transports them to the national (frontier) border in sections shall be identified as "transporting others to illegally cross the national (border) border" stipulated in Article 321 of the Criminal Law. Convicted and punished for the crime of transporting others across the country (border) without permission.

However, when deciding whether to investigate criminal responsibility and how to determine the penalty, the actor's role in the process of transporting others across the country (border) should be fully considered and properly handled in accordance with the law.

  5. The "number of people" stipulated in Article 1, Paragraph 2 and Article 4 of the Interpretation shall be calculated based on the number of people actually organized and transported; those who have not arrived at the case shall be counted if they are verified to be true.

  6. Knowing that others have committed the crime of defrauding foreign documents, and providing false certificates, invitation letters, and face-to-face training, etc., shall be punished as a joint crime of the crime of defrauding foreign documents; if it complies with the provisions of Article 318 of the Criminal Law, it shall be regarded as organizing others to illegally escape. National (border) crime conviction and punishment.

  7. Conspiring with criminals who organize others to sneak across the country (border) in advance, providing them with false certificates, invitation letters, and face-to-face training, etc., and defrauding entry visas and other entry documents, in order to organize others to sneak across the country (border) If it is used, it shall be punished as a joint crime of the crime of organizing others to cross the country (border) by stealing.

  8. The number of illegally crossing the country (border) shall be calculated according to the number of illegal exit and entry.

However, for those who return in time after illegally crossing the border, or who re-enter the country and surrender themselves after illegally exiting the country, they should generally be counted as one time.

  9. Persons who illegally cross the national (frontier) border cooperate with each other and jointly illegally cross the national (frontier) border, which belongs to the "consortium" stipulated in the second item of Article 5 of the Interpretation.

Persons who smuggle across the country (frontier) border accidentally travel together under the arrangement of the organizer and carrier, do not belong to "gang".

  When determining the number of people who have illegally crossed the national (frontier) border, those under the age of 16 are not counted.

  10. Unauthorized crossing of the national (frontier) border, under any of the following circumstances, falls within the "other serious circumstances" stipulated in Article 5, Item 6 of the Interpretation:

  (1) After committing a crime, smuggling across the country (border) in order to evade criminal investigation;

  (2) After destroying the border physical isolation facilities, sneaking across the country (border) border;

  (3) Sneaking across the country (border) for the purpose of committing telecommunication network fraud, opening casinos and other crimes;

  (4) Those who were sentenced to criminal punishment for the crime of obstructing national (frontier) management and illegally crossed the national (frontier) border within two years after the execution of the sentence.

  Whoever commits the crime of illegally crossing the national (border) border, and also commits acts such as obstructing public affairs, assaulting the police, obstructing the prevention and control of infectious diseases, etc., and conforming to the composition of the relevant crime, shall be punished for several crimes.

  11. Whoever leads others on foot to evade border inspections and smuggles across the country (border) through a concealed route is transporting others to smuggle across the country (border).

Whoever leads, plans, or directs others to sneak across the country (border) border and conducts the act of leading on foot shall be punished as the crime of organizing others to sneak across the country (border) border.

  The number of people who lead the illegal crossing of the country (border) on foot is relatively small, the perpetrator is a first-time offender, and he has indeed shown repentance. Considering the motives of the behavior, consistent performance, illegal gains, and actual effects, he believes that it is a hindrance to the national (border) management order. If the degree is obviously minor, it may be determined that the circumstances of the crime are minor, and no prosecution or criminal punishment shall be waived according to law;

  12. For the "repeated delivery behavior" stipulated in Paragraph 1 of Article 321 of the Criminal Law, the cumulative number of people transported should generally be close to ten.

3. Jurisdiction over criminal cases of obstructing national (border) management

  13. The criminal case of obstructing national (border) border management shall be filed and investigated by the public security organ in the place where the crime was committed.

If it is more appropriate to file a case for investigation by the public security organ in the place where the criminal suspect resides, the public security organ in the place where the criminal suspect resides may file a case for investigation.

  The crime of obstructing the national (border) management crime includes the places related to the criminal activities such as the preparation place, the transit place, the seized place, etc.

  14. For a criminal case that interferes with national (border) border management with multiple crime locations, the public security organ that initially accepted the case or the public security organ of the main crime location shall file the case for investigation.

If there is a dispute, the relevant public security organ shall be designated by the common superior public security organ to file a case for investigation in accordance with the principle of facilitating the investigation of the facts of the crime and the litigation.

  15. Under any of the following circumstances, the relevant public security organs may conduct joint investigations within the scope of their duties:

  (1) One person commits several crimes;

  (2) Joint crime;

  (3) The criminal suspect or defendant of the joint crime also commits other crimes;

  (4) The crimes committed by multiple criminal suspects and defendants are related, and the joint handling of the case is conducive to the identification of the facts of the case.

4. Collection and review of evidence

  16. The determination of the subjective knowledge involved in the case of obstructing national (border) management should be based on the process and method of the act, the situation and environment when the act was seized, the perpetrator's cognitive ability, previous experience, and his/her relationship with the co-conspirator. Relationships, illegal profits, etc., examine whether the relevant defenses are obviously contrary to common sense, and comprehensively analyze and judge.

  In the case of organizing others to smuggle across the country (frontier) border, or transporting others to smuggle across the country (border) border, etc., if one of the following circumstances exists, it can be determined that the perpetrator knows it subjectively, but the perpetrator makes a reasonable explanation or has evidence to the contrary. except:

  (1) Using concealed methods such as concealment, disguise, modification, etc. to pick up or hold people who have crossed the country (border) illegally;

  (2) Using the same communication group, coded language, etc. to communicate with other actors hindering national (border) management;

  (3) Avoiding border inspections by circumventing customs or cards, or the time and route of passing through border areas before leaving the country or after entering the country obviously violates common sense;

  (4) Deliberately providing false identity, cause, location, contact information and other information when accepting law enforcement inspections;

  (5) The remuneration paid, received or agreed upon is obviously unreasonable;

  (6) Attempting to escape, obstructing or resisting law enforcement inspections, or destroying evidence when encountering law enforcement inspections;

  (7) Other circumstances sufficient to determine that the perpetrator knew.

  17. People's courts, people's procuratorates, public security organs, and immigration management agencies shall provide translations for suspects, defendants, witnesses and other relevant personnel who do not understand the common spoken and written Chinese language.

  If the translator is unable to be present within the time limit specified for the handling of the case, the case handling agency may conduct the translation through a video connection, and record and record the entire translation process without interruption.

  The translator should sign the translated document.

  18. Overseas evidence materials collected in accordance with 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, but the provider or the contract signed between my country and relevant countries. Except where bilateral treaties expressly limit the scope of use of the material.

  The case-handling agency shall transfer relevant explanatory materials to the overseas law enforcement agency on the source of the collected evidence, the person who extracted it, the time of extraction or the person who provided it, the time of supply, and the process of custody and transfer; , the case-handling organ 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 investigative measures are used as evidence, they shall be transferred with the case, together with the legal documents, evidence list and relevant situation descriptions for taking technical investigative measures.

  20. All kinds of property found in handling cases that can be used to prove the guilt or innocence of criminal suspects and defendants shall be sealed up, seized and frozen in strict accordance with statutory conditions and procedures.

Property unrelated to the case shall not be sealed, seized, or frozen.

All seized, seized and frozen properties must be reviewed in a timely manner.

If it is found out that it has nothing to do with the case, it shall be rescinded or returned within three days, and the parties concerned shall be notified.

  When sealing up, detaining, or freezing the property involved in the case and its fruits, a list shall be made, kept properly, and transferred with the case.

After the people's court makes an effective judgment, it will be dealt with in accordance with the law.

  The public security organ and the people's procuratorate shall examine and screen the property involved in the case.

When transferring for review and prosecution or filing a public prosecution, opinions on the handling of the property involved in the case shall be put forward.

The people's court shall make a judgment in accordance with the law on the property involved in the case transferred with the case.

V. Grasp the criminal policy of combining leniency with strictness

  21. When handling a criminal case of obstructing national (border) border management, the perpetrator's motive, mode of conduct, purpose, and harmful consequences should be comprehensively considered, and the facts of the crime and the circumstances of sentencing should be fully grasped, and punished in accordance with the law.

Do a good job in the connection between administrative law enforcement and criminal justice. Cases suspected of obstructing national (border) border management should be promptly transferred for investigation, and administrative punishment should not be used as a substitute for criminal investigation.

  For those who are not prosecuted or exempted from criminal punishment for committing relevant acts, if they should be given administrative punishments, governmental sanctions or other sanctions according to law, they shall be transferred to the relevant competent authorities for handling according to law.

  22. Highlight the key points of combating criminal cases that impede national (border) management, severely punish the crime of organizing others to smuggle across the national (border) border, and adhere to the entire chain, all links, and all processes of the industrial chain that hinders national (border) border management. criminal punishment.

For those who organize others to illegally cross the national (border) border to defraud the entry and exit documents, provide forged or altered entry-exit documents, sell immigration documents, or transport illegally cross the national (border) border, etc., and form a chain of interests, the Resolutely punish according to the law, dig deep into the source of crime, cut off the chain of interests, and constantly squeeze the space for such crimes to breed and spread.

  For the crime of transporting others across the country (border) without permission, the number of people transported, illegal gains, previous convictions, etc. shall be comprehensively considered and punished according to law, with emphasis on punishing those who take this as a business, repeatedly punish and repeat offenders, make huge profits, and have other major social hazards. situation.

  For the crime of illegally crossing the country (border), comprehensive consideration shall be given to the motives, means of behavior, and previous criminal convictions and punishments, with emphasis on punishing crimes committed by crossing the border, repeated punishments and repeated offenses, and other situations that cause major social harm.

  23. For criminal gangs and criminal groups obstructing state (border) management, the main elements, principal offenders and active participants should be punished with emphasis.

For those who are employed or used for auxiliary staff such as information registration and material submission, who do not directly interfere with national (border) management, criminal responsibility is generally not investigated, and the public security organ or immigration management agency may issue administrative penalties or other processing.

  24. The relevant acts involved in the crime of obstructing the national (frontier) management after illegally crossing the national (frontier) border shall be dealt with according to the circumstances.

Organizing and transporting others to cross the country (border) border illegally, and then organizing and committing crimes after others illegally cross the country (border) border, should be the focus of punishment, and those who meet the provisions of the combined punishment for multiple crimes should be punished for multiple crimes.

  For those who organize and transport others to cross the country (border) border illegally, or recruit laborers knowingly that they are criminals who illegally cross the country (border) border, comprehensive consideration should be given when deciding whether to investigate criminal responsibility and how to determine the penalty. Circumstances such as the number of people crossing the border, illegal gains, previous convictions, impact or consequences, etc., shall be properly assessed for social harm and properly handled in accordance with the law.

Among them, if the unit carries out the above-mentioned acts, and the organizer, planner, and perpetrator are investigated for criminal responsibility in accordance with the law, the conviction and sentencing should be comprehensively considered, and the difference should be appropriately reflected to ensure that the culpability and punishment are compatible.

  25. For the crime of obstructing national (border) management for the purpose of making profits, it is necessary to pay attention to the application of property penalties and the recovery of criminal proceeds, confiscation of crime tools and other disposal methods, increase the enforcement of property penalties, and deprive them of their ability to re-offend to the greatest extent possible. and conditions.

  26. Criminal suspects or defendants provide important evidence or major clues, which play a key role in the detection and identification of criminal cases that seriously impede national (border) border management. If they are verified to be true, they may be dealt with leniently in accordance with the law.

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