China News Service, July 7th. According to the website of the Supreme People's Procuratorate, on July 7th, the Supreme People's Procuratorate released 6 typical cases of punishing crimes of obstructing national (border) management according to law, including 4 cases of illegally crossing the border and 2 cases of transportation. The case of illegally crossing the country (border) by others, involving soliciting and enticing multiple people to cross-border smuggling, crossing the border on foot in a group to work abroad, overseas border residents crossing the scope specified in the temporary border pass to enter the mainland illegally to work in groups, and taxi drivers knowing that others were transporting people to illegally cross the border. Crimes such as helping transport across the border.
Taxi and privately operated car drivers still choose to provide assistance to criminal gangs in order to obtain high rental fees when they know in advance that the people they pick up and drop off are smugglers, does it constitute a crime?
In this batch of typical cases, the handling of the case of Liu Moumou and other five people transporting others to cross the border illegally has further clarified this. Their behavior also endangered the order of border management, constituted a crime, and should be punished according to law.
In recent years, with the continuous deepening of my country's economic and social development and opening to the outside world, the incidence of crimes that obstruct national (border) management has been high, showing a prominent situation of joint crimes, multiple crimes committed by one person, and a large number of border residents participating in crimes obstructing national (border) management. and other characteristics, and are often intertwined with illegal work, going abroad to participate in telecommunications network fraud, gambling and other illegal crimes.
In 2021, the procuratorial organs approved the arrest of 19,998 people in 7,886 criminal cases of obstructing national (border) management, a year-on-year increase of 116.1% and 94.5% respectively; 10,586 public prosecutions were initiated for 30,878 people, a year-on-year increase of 222.2% and 229.0% respectively.
The person in charge of the First Procuratorate of the Supreme People's Procuratorate stated that the procuratorial organs should fully understand the importance of timely punishing crimes that obstruct national (border) management in accordance with the law to maintain national security and maintain the order of national (border) management, and accurately understand the meaning of borders in the sense of criminal law. Connotation, the accurate application of the law to the illegal entry into the mainland from my country's border areas.
We will crack down on all kinds of smuggling and cross-border crimes in accordance with the law, and continuously strengthen the coordination and cooperation between various administrative regions, so as not to let go of any omission crime.
Continue to extend the procuratorial functions, be good at using the case handling system to analyze similar cases, and issue procuratorial suggestions to relevant departments in a timely manner.
Strengthen the case-by-case interpretation of criminal cases of smuggling, and educate and guide citizens to firmly establish the awareness of "national gate" and "border" by participating in public hearings and centralized sentencing.
Typical cases are as follows:
Case 1: Chen Mou A organized others to cross the border illegally, and Chen Mou B and others illegally crossed the national border
——To attract and lure multiple people to cross-border smuggling should be severely punished
【Key words】
Organizing to win over, review the necessity of detention, and hunt down missing criminals
【gist】
In order to avoid domestic crackdowns, criminals set up dens abroad and convened domestic personnel to go to the local area to commit crimes such as telecommunication fraud.
Under the leadership and command of overseas personnel, some perpetrators entice and lure multiple people to smuggle together. bring risks.
Procuratorial organs adhere to the whole chain of crackdowns, perform their duties proactively in accordance with the law, and maintain social security and stability.
【Basic case】
Defendant Chen Moujia, male, was born on March 29, 1989, and his domicile is Gulin County, Sichuan Province.
Defendant Chen Mouyi, male, was born on January 29, 1995, and his domicile is Leizhou City, Guangdong Province.
Defendant Wen XX, male, was born on July 16, 1998, and his household registration is Chaozhou City, Guangdong Province.
Defendant Xie Moumou, male, was born on December 10, 1995, and his domicile is Raoping County, Guangdong Province.
Defendant Zhou Moumou, male, was born on September 4, 1998, and his domicile is Leizhou City, Guangdong Province.
In early March 2021, at his home in Gulin County, Sichuan Province, defendant Chen Moujia met a WeChat netizen who posted a job advertisement nicknamed "Pineapple" through swiping orders and stock chat groups.
"Pineapple" proposed to let Chen Moujia go to the "Golden Triangle" area to do sales, and the treatment guaranteed a minimum of 8,000 plus commission, and promised to pay for all the expenses on the way. At the same time, it promised that Chen Moujia would get a commission after taking another person abroad.
Chen Moujia knew that he was engaged in illegal and criminal activities such as gambling or telecommunications fraud in the "Golden Triangle" area, but he could not stand the temptation of high salary and agreed.
Chen Moujia then wooed and lured the defendant Chen Mouyi to work abroad together on the grounds that he could receive a high salary abroad, and then Chen Mouyi contacted the defendants Zhou Moumou, Wen Moumou, and Xie Moumou to go together.
Later, according to the arrangement of "Pineapple", Chen Moujia, Chen Moumou, Wen Moumou, Xie Moumou, Zhou Moumou and three other smugglers Zhang Moumou (handled in a separate case), Wang Moumou (handled in a separate case), Peng Moumou So-and-so (handled separately) met in Kunming, Yunnan, and traveled by car to Myanmar.
During the period, all the expenses of the above-mentioned personnel were transferred by "Pineapple" to Chen Moujia and Zhang Moumou through WeChat, and the two were responsible for the payment.
In the early morning of March 21 of the same year, Chen Moujia and others were blocked by the Guanping border checkpoint in Yunnan Province and persuaded to return.
[litigation process]
On April 3, 2021, the Gulin County Public Security Bureau of Sichuan Province opened the case for investigation, and on July 19 of the same year, it was transferred to the Gulin County People's Procuratorate for review and prosecution.
On August 19 of the same year, the Gulin County People's Procuratorate prosecuted Chen Moujia for allegedly organizing others to cross the border illegally, and Chen Mouyi, Wen Moumou, Xie Moumou, and Zhou Moumou for the crime of illegally crossing the border.
On October 26 of the same year, the Gulin County People's Court sentenced Chen Moujia and Chen Mouyi to ten months and six months in prison, respectively, and fined RMB 8,000 and RMB 5,000; X and Zhou were sentenced to six months to seven months in prison, suspended for one year, and fined 3,000 yuan.
[Performance of duties by the procuratorial organs]
(1) Strengthen early intervention and comprehensively guide evidence collection.
After the criminal case was filed, as the county's first case of illegally crossing the country (border), the Gulin County Public Security Bureau consulted and asked the County People's Procuratorate to send staff to intervene in advance.
After listening to the case introduction and reviewing the evidence, the prosecutor proposed to collect evidence in three aspects: jurisdiction, subjective knowledge, and the nature of the case, and guided the collection of evidence such as whether the criminal suspect holds a passport and the time and method of preparing to leave the country to prove the criminal suspect. Subjective knowledge of illegally crossing the country (border); guide the collection of evidence such as confessions, payment vouchers, WeChat chat records, etc. of criminal suspects to prove the role played by each criminal suspect in the process of smuggling, so as to lock Chen Moujia and file a criminal case organizer, organizer, and commander.
(2) Strengthen legal supervision, and pursue and prosecute omissions in accordance with the law.
On May 12, 2021, the Gulin County Public Security Bureau submitted a request to the procuratorate for review and arrest for Wen Moumou and Xie Moumou suspected of illegally crossing the country (border) border.
After review and analysis, the procuratorate found that Wen Moumou could not truthfully confess the facts of the crime, there was a possibility of collusion, and the arrest was socially dangerous. Xie Moumou pleaded guilty and repented, and was not arrested without social danger.
At the same time, the prosecutor found evidence in the case that the organizer Chen Mou A organized people to carry out smuggling behavior, and Chen Mou B carried out smuggling behavior, which may be sentenced to more than imprisonment, and both of them "have committed a crime on purpose" and met the conditions for direct arrest. Chen Mou A and Chen Mou B hunted down, and the latter two were both sentenced to fixed-term imprisonment, which effectively cracked down on the "fish that slipped through the net".
(3) Dynamically review the necessity of detention and change compulsory measures in a timely manner.
On July 19, 2021, the Gulin County Public Security Bureau transferred the case to the County People's Procuratorate for review and prosecution.
During the review and prosecution process, the prosecutor, through evidence discovery and interpretation of the law, urged Wen to overcome his luck, confess his guilt and repent, and truthfully confessed the facts of the crime.
The Gulin County People's Procuratorate initiated a review of the necessity of detention, and based on the circumstances of Wen Moumou's first offense, attempted, guilty plea and acceptance of punishment, etc., Wen Moumou was changed to a compulsory measure of release on bail pending trial.
So far, the five suspects have no objection to the alleged criminal facts and evidence, and voluntarily pleaded guilty and accepted punishment.
【Typical meaning】
(1) It is necessary to fully understand the social harm of smuggling itself and its accompanying behavior, improve legal awareness, and put an end to trying the law by oneself.
Some perpetrators clearly know that the high salary promised abroad is related to illegal and criminal activities such as telecommunication fraud and online gambling, but they break through the legal bottom line in the face of the temptation of money. Harmful consequences, but also take chances when they may face relevant penalties and try the law.
Some perpetrators not only smuggled in by themselves, but also under the leadership and command of overseas personnel, woo other people to smuggle and organize smuggling, which brings more serious social impact.
These acts should be severely punished in accordance with the law.
(2) Procuratorial organs can actively perform their duties, strengthen legal supervision, and crack down on criminal acts such as organizing cross-border smuggling in accordance with the law.
Crimes of obstructing state (border) management are often joint crimes. When reviewing cases, procuratorial organs should focus on discovering omissions of criminal circumstances, and perform legal supervision functions in accordance with the law. If the public security organs should request approval of arrest but fail to do so, they should pursue and arrest them. Fix evidence in a timely manner, consolidate the evidence base for accusations, crack down on criminal acts in an all-round way, and enhance judicial credibility.
【Regulations】
Articles 318 and 322 of the Criminal Law of the People's Republic of China
Articles 1, 5 and 6 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 Obstructing State (Border) Administration
Articles 270 and 288 of the Criminal Procedure Rules of the People's Procuratorate
Case 2: The case of Liao Moujia and other 4 people sneaking across the border
——It is a crime to cross the border on foot to go abroad to work in a group
【Key words】
Procuratorial suggestions for smuggling "big data" platforms in gangs
【gist】
Chinese citizens who exit or enter China shall apply for passports or other travel documents in accordance with the law, and shall exit and enter through ports open to the outside world.
Regardless of the purpose, anyone who violates the national (frontier) management regulations and illegally crosses the national (frontier) border, if the circumstances are serious and constitutes the crime of illegally crossing the national (frontier) border, shall be punished according to law.
【Basic case】
Defendant Liao Moujia, male, born in May 1991.
Defendant Liao Mouyi, male, born in May 1995.
Defendant Zheng Moujia, male, born in November 1998.
Defendant Zheng Mouyi, male, born in October 1994.
The above four persons are registered in Anxi County, Fujian Province.
The defendants, Liao Moujia, Liao Mouyi, Zheng Moujia, and Zheng Mouyi, felt that they could make a lot of money by going to Myanmar. After negotiation, they made an appointment to go to Myanmar to work.
Since none of the four had passports, they planned to smuggle out of Yunnan.
On August 31, 2020, in order to evade control, the four defendants did not choose a direct flight, but first took a plane from Xiamen to Guiyang, then took a high-speed rail from Guiyang to Kunming, Yunnan Province, and then chartered a car to Menglian, Yunnan, where they were sent by The driver of the chartered car (handled separately) took the 4 people to a hotel and waited for an opportunity to smuggle out of the country.
On September 5 of the same year, the four defendants were divided into two groups under the arrangement of the hotel owner and others (handled in a separate case). Under the leadership of different Burmese people, they sneaked across the border by car and on foot.
Among them, Liao Moujia, Liao Mouyi, and Zheng Mouyi smuggled to Bangkang, Myanmar. Zheng Moujia was blocked by the route and could not return to Menglian and searched for an opportunity to smuggle again.
On September 8, Zheng Moujia, under the leadership of the Burmese, smuggled to Bangkang, Myanmar by car and on foot.
Due to the large gap between Myanmar's working environment and expectations and the severe local new crown pneumonia epidemic, the four defendants decided to return to China.
In January 2021, four defendants entered the country from Menglian Port in Yunnan, were seized by the local public security organs and imposed administrative penalties, and returned to their origins on their own after the expiration of the epidemic isolation period.
[litigation process]
On March 11, 2021, the Public Security Bureau of Anxi County, Fujian Province filed a case for investigation on the crime of illegally crossing the border by Liao Moujia and others; on April 14 and April 19, the Anxi County People's Procuratorate approved the arrest of Liao Moujia and others respectively ; On July 1, the Anxi County People's Procuratorate filed a public prosecution with the Anxi County People's Court for four people including Liao Moujia for the crime of illegally crossing the border; on August 16, the Anxi County People's Court sentenced 4 people to the crime of illegally crossing the border. The person shall be sentenced to imprisonment ranging from six months to eight months, and shall be fined RMB 5,000.
[Performance of duties by the procuratorial organs]
(1) Relying on the "big data" platform to collect evidence, and accurately identify the key elements of "crossing the border with gangs".
After the People's Procuratorate of Anxi County was invited to intervene in the case in advance, in response to Liao Mouyi and Zheng Mouyi's argument for smuggling alone and denying smuggling in a group, it is recommended that the investigation agency use the "big data" platform of the Provincial Public Security Department to conduct investigations before submitting for review and arrest. The transportation data such as the same flight, the same high-speed rail, the same accommodation record, and the distribution of mobile phone base stations left by the 4 people played a key role in accurately identifying the 4 people crossing the border as a group.
During the review and prosecution stage, the procuratorial organ prompted the two to choose to admit guilt and accept punishment in front of the evidence by disclosing traffic travel data to Liao Mouyi and Zheng Mouyi, who had always pleaded not guilty, and explained the leniency system for admitting guilt and accepting punishment.
(2) Discover management loopholes through data verification, and formulate and issue procuratorial recommendations to help social governance.
Relying on the unified business application system, the Anxi County People's Procuratorate comprehensively counts and analyzes the household registration and residence of the defendants in the crimes that interfere with the national (border) management. The town government issued a procuratorial suggestion, urging it to perform its territorial management and control functions, and prompted the town to include "prevention and management of gambling fraud and illegal entry and exit crimes in northern Myanmar" as a special work. Through family education meetings and other means, they comprehensively checked and verified personnel information, persuaded 43 high-risk personnel to return, and 181 reported to return to China in advance through formal channels.
(3) Dig deep into the criminal clues and work closely to cut off the source of the organization's smuggling.
Through careful review, the Anxi County People's Procuratorate found that there was a smuggling route from Yunnan to Myanmar controlled by "smugglers" behind this case and other cases that had been handled. It consulted with the public security organs in a timely manner to study and determine the characteristics of the case and countermeasures. Great efforts should be made to review the return of the persons involved in the case, to find out their smuggling routes, the organization of smuggling networks, and the organizers and participants behind them.
In August 2021, the public security organs cracked the case of 18 people including Han XX who organized illegally crossing the border, and successfully cut off a chain of smuggling organizations from Fujian to Yunnan, cutting off the source of the crime.
【Typical meaning】
(1) To enhance legal awareness and consciously abide by the national (border) management order is the proper meaning of fulfilling civic obligations and protecting personal and property rights and interests.
In recent years, some domestic personnel believe in the lie of "transnational gold rush", and even smuggle out of the country to engage in illegal and criminal activities such as telecommunication and network fraud, gambling, etc. in a state of lack of security.
Under the current situation of severe international COVID-19 epidemic and my country facing greater epidemic prevention and control pressure of "foreign defense import, internal defense rebound", the crime of illegally crossing the country (border) will return to the country's epidemic prevention and control work and the lives and health of the people. Security brings many hidden dangers.
Citizens should consciously abide by the national (border) management regulations. For violation of national (border) management regulations and illegally crossing the national (frontier) border, there are serious behaviors such as multiple times, ganging up, wooing and enticing others to illegally cross the national (frontier) border. It constitutes the crime of illegally crossing the country (border) and should be punished according to law.
(2) Severely crack down and punish crimes that obstruct national (border) management in accordance with the law.
Procuratorial organs should fully understand the importance of timely and severely punishing crimes that obstruct national (border) management in accordance with the law to safeguard national security and social stability, and strictly crack down on illegally crossing the national (border) border and its closely related drug- and terrorism-related crimes in accordance with the law. , smuggling, telecommunication network fraud, gambling and other cross-border crimes, maintain the national (border) management order and national security with high-quality and efficient procuratorial case handling, serve to ensure the overall situation of epidemic prevention and control, and build a national border security barrier.
(3) Actively participate in social governance, and help prevent illegal and criminal ports from moving forward.
Procuratorial organs should extend their procuratorial functions, perform their duties proactively, attach great importance to the frequent and frequent occurrence of cases within a certain period of time, be good at using the case-handling system to analyze similar cases, and issue procuratorial suggestions to relevant departments in a timely manner for the social governance loopholes exposed by the cases. And comprehensive use of forums, visits and investigations, irregular consultations, etc., urge the competent authorities to strengthen and improve supervision, strengthen source control, normal governance, improve governance, and effectively safeguard national interests and social and public interests.
【Regulations】
Article 322 of the Criminal Law of the People's Republic of China
Articles 5 and 6 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 Obstructing State (Border) Administration
Article 11 of the Provisions on the Work of Procuratorial Suggestions of the People's Procuratorate
Case 3: Wu Moumou stole crossing the border
——Overseas border residents cross the scope of temporary border pass to form a group and enter the mainland for illegal work, which violates my country's criminal law
【Key words】
Overseas Border Residents Temporary Border Pass Procuratorial Recommendations
【gist】
In order to promote economic and social cooperation and development between my country and border countries, my country has signed border management cooperation agreements with relevant border countries, allowing foreign border residents to legally enter my country's border areas with temporary border passes to engage in activities such as visiting relatives and friends, tourism, and mutual market trade.
Temporary border pass holders are only limited to stay within the specified area and valid period. For violations of border management regulations, illegal crossing of the scope of activities permitted by the border pass, and entry into the mainland without approval, if the circumstances are serious, they shall be convicted of the crime of illegally crossing the border penalty.
【Basic case】
Wu Moumou, male, born in 1983, a citizen of the Republic of the Union of Myanmar.
In 2017, Wu Moumou smuggled across the border from Myanmar to work in Dongguan, Guangdong Province, my country.
After returning in January 2018, Wu Moumou told his relatives and friends that he could earn much higher income than in Myanmar, so his relatives, friends and neighbors requested to follow him to work in mainland China.
In March 2018, Wu Moumou led his son, relatives, neighbors and other 10 people (all handled separately) from their hometown, took boats, buses and other means of transportation to Mujie Town, Shan State, Myanmar, to apply for the "Temporary Temporary After entering the Jiegao Border Trade Zone, Ruili City, Yunnan Province, my country.
On the way, 2 Burmese citizens and 1 person of unknown nationality also requested to join to follow Wu Moumou.
Later, Wu Moumou contacted Myanmar citizen Jue Moumou (handled in a separate case), and Jue Moumou was responsible for arranging the routes, means of transportation, and places to work in mainland China.
Under the leadership of Jue Moumou, Wu Moumou and the above-mentioned 13 people violated the "Temporary Border Pass of the Republic of the Union of Myanmar", which can only be used as a port or channel designated by China and Myanmar to exit and enter the country, and only in the specified border area. According to regulations such as use during activities, without applying to the entry-exit administration department of our country for a permit to go to the mainland in accordance with the law, evading border inspections and illegally entering the mainland from a sister in Yunnan.
Later, Wu Moumou and others evaded inspections by driving at night, choosing remote routes, etc., and successively went to Dongguan City, Guangdong Province, and Haining City, Zhejiang Province to work illegally in many small factories and logistics companies.
On June 15, 2018, when the Public Security Bureau of Haining City, Zhejiang Province inspected the rental house, Wu Moumou was seized for illegal entry and illegal residence.
[litigation process]
On June 23, 2018, the Public Security Bureau of Haining City, Zhejiang Province opened the case for investigation, and on December 13 of the same year, it was transferred to the Haining City People's Procuratorate for review and prosecution.
On January 25, 2019, the Haining City People's Procuratorate prosecuted Wu Moumou for the crime of illegally crossing the border.
On April 16 of the same year, the Haining City People's Court sentenced Wu Moumou to 11 months in prison for the crime of illegally crossing the border, and fined him 1,000 yuan and deported him.
Wu Moumou pleaded guilty and served the sentence.
[Performance of duties by the procuratorial organs]
(1) Find out the facts and accurately determine the nature of the behavior of foreign border residents illegally entering the mainland of my country from the border areas of my country.
According to the "Regulations of the People's Republic of China on Exit and Entry Frontier Inspection", the border management cooperation treaty signed between my country and neighboring countries and other relevant regulations, border residents of neighboring countries who temporarily enter the country in accordance with the agreement are limited to activities within the scope specified in the agreement, and need to go to the scope specified in the agreement. For activities outside the country, entry formalities should be completed in advance.
For example, after Myanmar border residents holding the "Temporary Border Pass of the Republic of the Union of Myanmar" enter my country's border through the port or temporary channel specified by China and Myanmar, they are only limited to the border management area bordering China and Myanmar within the validity period.
In this case, after sorting out the evidence, the procuratorial organ determined that Wu Moumou and others violated national (border) management regulations, evaded border inspections and illegally entered the mainland, and crossed the border illegally in groups, and should be cracked down in accordance with the law.
(2) Actively perform their duties, and actively participate in municipal governance in the form of procuratorial suggestions and legal publicity.
Wu Moumou and others worked illegally in Dongguan City, Guangdong Province, and Haining City, Zhejiang Province, incognito or using false documents, which brought great hidden dangers to the labor market order and social security stability in the inflowing places.
In this regard, the procuratorial organs have formulated and issued procuratorial recommendations to the public security authorities regarding the loopholes in social governance, urged the development of special investigations in key areas and industries, and established an effective mechanism to promptly detect and repatriate illegal immigrants.
【Typical meaning】
(1) Overseas personnel shall strictly abide by the national (border) management system of China and foreign countries, and operate within the scope permitted by legal documents.
Illegal entry, illegal residence, and illegal employment of foreign personnel have disrupted the management order of my country's borders, and also brought uncertain factors to the labor market, social security and stability.
At the same time, because smugglers do not have legal residence status, it is difficult to guarantee their working and living environment in the country, and there are hidden dangers for personal and property safety.
In 2021, the cases of illegally crossing the country (border) accepted by the procuratorial organs will increase rapidly, which will have a greater impact on economic and social stability.
The procuratorial organs should intensify their efforts to crack down on crimes of illegally crossing the country (border), resolutely maintain the security and stability of ports and borders and the order of entry and exit management, and resolutely safeguard the safety of people's production and life.
(2) Accurately understand the connotation of national border in the sense of criminal law, and accurately apply the law to the illegal entry into the mainland from my country's border areas.
For foreign border residents who legally enter my country's border areas with a temporary border pass, violate border management regulations and illegally enter the mainland of my country through the scope of activities permitted by the pass, the procuratorial organ should review and analyze the identification of my country's national border and illegal crossing of the border in combination with administrative regulations. For the determination of behavior, for foreign border residents to travel beyond the scope of their temporary border passes after entering the country and travel from my country's border areas to the mainland, if the circumstances are serious, they should be identified as the crime of illegally crossing the border according to law.
【Regulations】
Article 322 of the Criminal Law of the People's Republic of China
Articles 5 and 6 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 Obstructing State (Border) Administration
Article 11 of the Provisions on the Work of Procuratorial Suggestions of the People's Procuratorate
Case 4: The case of Zhang XX sneaking across the border
——Those who believe in foreign gold rush gangs to sneak across the border are criminally filed, and they enter or leave the country illegally while they are released on bail pending trial, and they should be severely punished
【Key words】
Combining leniency with strictness Social danger Precise sentencing
【gist】
For minor crimes of illegally crossing the national (border) border, the procuratorial organs should comprehensively review the social danger of the criminal suspect in the process of reviewing and arresting the case. Strict requirements and compulsory detention measures.
【Basic case】
Defendant Zhang Moumou, born in January 2002, whose household registration is in Yining County, Xinjiang Uygur Autonomous Region.
In mid-December 2019, when the defendant Zhang Moumou was watching a short video, he saw that someone had posted information on the recruitment of overseas game network back-office personnel.
After Zhang Moumou sent his ID number and other personal information to the other party, under the other party's arrangement, on January 3, 2020, he took the train from Yili, Xinjiang to Urumqi with the train ticket ordered by the other party, and met on the train. I found Shi Moumou and Chen Moumou who also saw the overseas recruitment information and were going to smuggle out of the country (both were dealt with separately).
The latter three travelled from Urumqi via plane, car, kayak and other means of transportation to Kunming and Pu'er in Yunnan until they smuggled across the border to Bangkang, Myanmar.
When Zhang Moumou arrived in Bangkang, his mobile phone and ID card were confiscated, and he was kept in a compound in the mountains by guards. He was required to send text messages and links about online gambling to the designated mobile phone number from time to time.
After working for a period of time, Zhang Moumou found that the job did not match the previous propaganda, so he escaped due to the guard's unpreparedness, bought a new mobile phone and contacted Shi Moumou and Chen Moumou who had left the country together before.
On April 9 of the same year, the three people were arranged to smuggle back to China after paying 3,600 yuan of borrowed RMB to the "snake head" in Myanmar. ) was discovered by villagers in a certain village and called the police, and was later arrested and brought to justice.
On April 24, 2020, Zhang Moumou was investigated by the Cangyuan County Public Security Bureau of Yunnan Province for the crime of illegally crossing the border and took compulsory measures to be released on bail pending trial. Even smuggled to Bangkang, Myanmar.
After leaving the country, he set up a barbecue stall and worked as a plumber, but it was difficult to make a living. After receiving a notice from the police station in his hometown urging him to surrender, he was controlled after entering the country at Meng'a Port in Yunnan on August 11, 2021.
[litigation process]
On September 13, 2021, the Cangyuan County People's Procuratorate approved the arrest of Zhang Moumou in accordance with the law. On October 15 of the same year, a public prosecution was filed with the Cangyuan County People's Court, recommending a sentence of nine months in prison and a fine of RMB 8,000.
On October 27, the Cangyuan County People's Court pronounced the verdict in court, all adopting the prosecution opinions and sentencing recommendations.
[Performance of duties by the procuratorial organs]
(一)全面审查案件，准确衡量犯罪嫌疑人社会危险性。本案中，被告人张某某与他人结伙非法出入国境，其行为已触犯《中华人民共和国刑法》第三百二十二条之规定，涉嫌偷越国境罪。其被采取取保候审强制措施期间，违反规定又私自非法出境，致使刑事诉讼程序无法继续进行。沧源县人民检察院审查认为，其主观恶性和再犯可能性较大，确有羁押必要，根据《中华人民共和国刑事诉讼法》第八十一条第四款之规定，对张某某作出批准逮捕决定。
(二)贯彻宽严相济刑事司法政策，适用认罪认罚从宽制度。本案中，沧源县人民检察院依法告知张某某认罪认罚从宽制度及其法律后果，其自愿认罪认罚并如实供述全部犯罪事实，后在值班律师的现场见证下签署了《认罪认罚具结书》。检察机关针对被告人在取保候审期间再次偷越国境的情形，在提出量刑建议时从严把握，但综合其在案发后受规劝回国，如实供述自己的犯罪事实，又自愿认罪认罚，检察机关依法对其从宽提出“建议判处有期徒刑九个月，并处罚金人民币八千元”的量刑建议，并建议法院适用简易程序审理本案。
(三)结合指控犯罪，进行法治教育。在本案开庭审理时，公诉人向法庭出示了张某某犯偷越国境罪的证据，发表了公诉意见及量刑建议，并结合当前国内外疫情防控形势，分析了被告人张某某的行为不仅危害了我国的国境管理秩序，而且还给我国的疫情防控工作带来了较大的风险。法院当庭宣判，全部采纳了检察机关的指控意见和量刑建议。本案通过公开开庭、法庭教育和公开宣判，取得了良好的法治宣传效果。
【典型意义】
(一)准确评估社会危害性，依法惩治偷渡犯罪。近年来，“境外高薪招工”陷阱频现网络，不法分子大肆虚假宣传境外“处处有商机、遍地是黄金、高薪待遇好、轻松又发财”，从而诱骗我国公民偷渡出境。在境外人员的遥控指挥与帮助下，大量偷渡人员无视我国国(边)境管理规定，通过非法方法出入我国国(边)境，严重扰乱了我国的国(边)境管理秩序。偷渡人员出境后，被境外人员限制自由、侵害人身、索要财物甚至威胁生命，部分偷渡人员还走上了违法犯罪的道路，严重影响了我国公民人身财产安全和国内社会安全稳定。疫情防控期间，偷渡违法犯罪与疫情风险相互交织，严重妨害了我国疫情防控工作大局。
(二)运用宽严相济刑事政策，让偷渡犯罪者罚当其罪。检察机关聚焦偷渡分子带疫入境这一疫情防控重大风险点，把打击偷越国(边)境违法犯罪活动与把好“外防输入”关口紧密结合起来，坚持依法从严的主基调，综合评估社会危害性和羁押必要性，准确适用强制措施，对偷越国(边)境犯罪形成有力震慑。同时，对主动回国投案自首、自愿认罪认罚的非法出入境人员兑现相关刑事政策，依法从宽处理，综合全案的事实、证据和情节提出精准的量刑建议，让偷渡犯罪者受到罪责刑相适应的处罚。
(三)通过公开开庭审理，加强反偷渡法治宣传教育。检察机关认真贯彻落实“谁执法谁普法”的普法责任制，加强对偷渡犯罪案件的以案释法工作，通过参与公开开庭审理、庭审直播、集中宣判等方式，广泛开展反偷渡的法治宣传教育，让广大群众清醒认识到偷越国(边)境犯罪对个人、家庭和社会带来的危害及所要承担的刑事责任，教育引导国民牢固树立“国门”和“边境”意识，促进全民守法、群防群治、合力强边固防。
【相关规定】
《中华人民共和国刑法》第三百二十二条
《最高人民法院、最高人民检察院关于办理妨害国(边)境管理刑事案件应用法律若干问题的解释》第五条、第六条
案例五：刘某某等五人运送他人偷越边境案
——出租车司机明知他人运送人员偷越边境而帮助运送亦构成共犯
【关键词】
出租车司机 帮助运送 依法抗诉
【要旨】
出租车司机事先明知他人从事运送他人偷越国(边)境犯罪而仍然提供帮助的，应当以运送他人偷越国(边)境罪共犯论处。对于审判机关判决认定错误的，检察机关依法提出抗诉，履行审判监督职责。
【基本案情】
被告人刘某某，男，1983年6月出生，户籍地为安徽省泗县。
被告人杨某某，男，1986年2月出生，户籍地为湖南省洪江市。
被告人向某某，男，1987年11月出生，户籍地为湖南省洪江市。
被告人梅某某，男，1995年11月出生，户籍地为广东省雷州市。
被告人阳某某，男，1978年12月出生，户籍地为湖南省攸县。
2019年11月，温某某、彭某某(另案处理)等5人打算去澳门，但因在澳门曾有违法记录等原因不能通过正规途径前往，遂通过“蛇头”联系到梅某某等人负责接应、刘某某等人负责运送。2019年11月30日晚，刘某某安排杨某某在珠海某大楼门口接应梅某某及温某某等5名偷渡人员，并由刘某某联系好的出租车司机阳某某负责运送。阳某某此前曾于11月24、25日先后两次受刘某某雇请运送偷渡人员，在明知所运送的是偷渡人员的情况下，为了牟取非法利益，仍接受刘某某安排，驾驶出租车搭载杨某某及5名拟偷渡人员前往珠海市某船厂附近海边，由刘某某事先安排的向某某接应。阳某某还按照刘某某的指示，在下车点附近等候接应从澳门返回的偷渡客人。随后，向某某驾驶木船搭载温某某等5名偷渡人员欲渡海前往澳门，因向某某当天下午刚学习驾船操控经验不足、船只未配备救生设备、船上人员众多等原因，木船离岸行驶约2、3分钟(离岸边80米左右)时，船只倾斜、船头进水导致船只倾覆，船上6人均落入水中。向某某自行游泳到岸边获救，温某某、彭某某被闻讯赶来的海警救出，其余3名偷渡人员溺水死亡。
【诉讼过程】
2019年12月1日，珠海市海警局对此案立案侦查，同年12月2日、3日将5名犯罪嫌疑人抓获归案，2020年3月6日移送珠海市人民检察院审查起诉。同年6月5日，珠海市人民检察院交由珠海横琴新区人民检察院(现为广东省横琴粤澳深度合作区人民检察院，下同)审查办理。同年7月13日，珠海横琴新区人民检察院以刘某某、杨某某、向某某、梅某某、阳某某涉嫌运送他人偷越边境罪向珠海横琴新区人民法院(现为横琴粤澳深度合作区人民法院，下同)提起公诉。同年12月29日，珠海横琴新区人民法院认定刘某某、杨某某、向某某、梅某某犯运送他人偷越边境罪，结合4人具有的既未遂、主从犯、坦白、赔偿等情节，对4人分别判处有期徒刑三年至八年，并处罚金人民币一万元至二万元不等的刑罚；以阳某某系知情不举，不具有事先犯罪故意为由，判处阳某某无罪。2021年1月5日，珠海横琴新区人民检察院认为一审法院未认定阳某某构成犯罪有误，遂提出抗诉，珠海市人民检察院支持抗诉。同年4月13日，珠海市中级人民法院采纳抗诉意见，改判阳某某犯运送他人偷越边境罪，因其有未遂、从犯情节，判处有期徒刑一年，并处罚金人民币五千元。
【检察机关履职情况】
(一)审查梳理证据，准确适用法律，开展认罪认罚工作并提起公诉。检察机关在办理该案过程中，认真分析在案证据，梳理5名犯罪嫌疑人在整个犯罪链条中所起的作用特别是在运送过程中所起的作用，依法认定运送他人偷越边境犯罪。开展认罪认罚工作，准确认定5名犯罪嫌疑人在共同犯罪中的主从地位，结合犯罪后果、既未遂形态、是否主动认罪、早认罪、彻底认罪、稳定认罪等情节，对5人分别提出不同的量刑建议，并向法院提起公诉。
(二)发挥法律监督职能，依法开展抗诉工作。珠海横琴新区人民法院一审判决采纳了珠海横琴新区人民检察院对刘某某等4人的定罪处刑意见，但是认为阳某某系知情不举，涉嫌运送他人偷越边境罪的证据不足，宣告被告人阳某某无罪。珠海横琴新区人民检察院认为，根据现有证据，能够证明阳某某此前曾二次受刘某某雇请运送“客人”，并已知道杨某某是刘某某团伙中具体负责带“客人”偷越边境的，仍然与刘某某达成以后继续帮其接送“客人”的合意，第三次(即此次)仍在刘某某的授意下接上杨某某及其带的5名客人，阳某某是在犯罪意志支配下积极实施的帮助行为，而不是作为一名出租车司机实施的中立的履职行为，不属于违法阻却事由。后检察机关的抗诉意见得到二审法院的支持，判决阳某某犯运送他人偷越边境罪，判处有期徒刑一年，并处罚金人民币五千元。
【典型意义】
(一)公民应选择合法途径出入边境，确保自己和他人人身安全。广东毗邻港澳，长期以来，偷越边境类违法犯罪活动持续高发。特别是近年来，有的人员为逃避入境防疫隔离规定，偷越边境情况多发，不仅危害国家出入境管理秩序，也对疫情防控、打击和预防走私、毒品等犯罪造成严重隐患。偷渡船只多为“三无”船只，致使偷渡人员的人身安全存在重大隐患。公民应自觉遵守出入港澳台边境管理秩序，办理合法手续、通过正规途径出入边境。
(二)交通运输行业从业人员应增强合法经营意识，勿为短期经济利益犯险触法。随着打击力度的不断增强，不法分子为了逃避打击，降低风险，将偷渡人员招募、海上接送、路上接送等环节进行分割。犯罪团伙不再亲自负责整个组织、运送环节，而是通过支付高额费用按次或临时雇请出租车、私人运营车、船手等方式，由雇请人员负责偷渡人员接送，通过司机的职业行为来掩盖其违法行为，降低犯罪团伙被查获的风险。出租车、私人运营车司机在事前明知其接送人员是偷渡人员的情况下，为了牟取高额租车费用，仍然选择为犯罪团伙提供帮助，其行为同样危害了边境管理秩序，构成犯罪，应当依法予以惩处。
【相关规定】
《中华人民共和国刑法》第二十五条、第三百二十一条
案例六：卢某某等人运送他人偷越国境案
——为逃避处罚，采取隐蔽方式分段运送他人偷越国境难逃法网
【关键词】
边境地区 交通运输行业 分段运输
【要旨】
近年来，通过偷越国(边)境的方式进入我国务工的外籍人员增多。一些生活在国(边)境周边地区的交通运输行业从业人员，为了牟取高额报酬，按照“蛇头”安排，组成运送团伙，利用熟悉路卡、路况的职业条件，从内地至边境地区分段运送偷渡人员，为偷渡人员出境提供便利。此类行为助长了偷渡违法犯罪，妨害了国(边)境管理秩序，应认定为运送他人偷越国(边)境罪，予以坚决打击。
【基本案情】
被告人卢某某，男，1987年7月出生，户籍地为广西壮族自治区崇左市，兼职网约车司机。
被告人黄某甲，男，1994年7月出生，户籍地为广西壮族自治区崇左市，汽车司机。
被告人李某某，男，1983年12月出生，户籍地为陕西省洋县，汽车司机。
2020年1月，卢某某为了牟取高额报酬，应他人安排，运送没有合法出入境证件的越南籍务工人员回国，并拉拢黄某甲、李某某和黄某乙、何某某(后两人已另案处理)等熟悉边境路线的汽车司机加入运输团伙。
2020年1月4日下午，卢某某接到张某某(越南籍人员，另案处理)电话，要求其到广西南宁接送21名无合法出入境证件的越南籍人员返回越南。卢某某便联系黄某甲，安排黄某甲于1月5日凌晨到南宁港收费站接10名越南人，卢某某则于同日凌晨到南宁吴圩出口附近接了11名越南人，后二人到崇左市汇合，再由黄某甲、黄某乙运送该21名越南人绕过检查关卡，于1月5日6时许运送至凭祥市南山物流园，交给黄某甲事先联系好的李某某，由李某某转运给他人接应。当日7时许，李某某驾驶面包车经过凭祥市友谊镇弄怀屯边境互市点某商贸城附近时被查获。1月7日，黄某甲向公安机关投案。
2020年1月13日，卢某某接到某微信好友(另案处理)通知，让其到广西南宁接送25名无合法出入境证件的越南籍人员返回越南。1月14日凌晨3时许，卢某某联系何某某驾车前往广西南宁某收费站附近接到该25名越南人，由卢某某运送其中的14人，何某某运送其中的11人。卢某某绕过检查关卡行至凭祥市夏石收费站时被查获，何某某则躲避检查，将11名越南籍人员运送到凭祥市综合保税区某高速桥下。后该11名越南籍人员从山路徒步偷越国境回到越南。
【诉讼过程】
2020年1月5日，凭祥市公安局对此案立案侦查，并于同年4月8日移送凭祥市人民检察院审查起诉。同年5月6日，凭祥市人民检察院依法对卢某某、黄某甲、李某某以涉嫌运送他人偷越国境罪提起公诉，对3人均提出了五年以上有期徒刑并处罚金的量刑建议。同年5月20日，3人分别被凭祥市人民法院判处有期徒刑五年至六年，并处罚金人民币一万元至二万元。
【检察机关履职情况】
(一)引导侦查，夯实证据基础，依法追捕漏犯，实现全链条打击。凭祥市人民检察院受理该案后，依法批准逮捕卢某某、黄某甲、李某某，同时在团伙分工、犯罪手段等方面列明进一步侦查方向和取证要求，确保准确定性，强化指控基础。同时，审查发现公安机关未对卢某某1月14日运送偷渡人员偷渡出境的事实展开侦查，涉案的何某某、黄某乙仍然在逃，遂要求公安机关针对遗漏的犯罪事实展开侦查，并对同案犯何某某、黄某乙进行追捕，后将2人追捕到案并提起公诉，实现了全链条打击犯罪。
(二)审查分析证据，准确认定定罪、量刑情节，确保罚当其罪。针对部分被告人辩称不明知系共同实施犯罪、不知越南人要偷越国境等辩解，检察机关通过详细审查，根据3名被告人从业背景、获得高额报酬、选择夜间运送时间节点、绕开边防检查、目的地指向边境管理区、接续运送等客观情节，结合言词证据，准确认定3名被告人系共同犯罪，依法提起公诉、有力指控犯罪。
【典型意义】
(1) Attention should be paid to the involvement of personnel in the transportation industry in the smuggling crime in the areas surrounding the border.
In recent years, a large number of foreigners have come to work illegally in economically developed areas of our country. They have organized smuggling into China through the careful planning of "smugglers", and then smuggled back to China after the end of their work.
In order to evade the attack, some "snakeheads" take advantage of the fact that drivers in the transportation industry near the border area are familiar with local road levels, terrain and landforms, and use high remuneration to lure local drivers to help transport smugglers.
The driver also took advantage of the convenience of familiar colleagues in the industry to form a sectional transportation gang to achieve long-distance transportation.
People in the transportation industry have insufficient understanding of the illegality and harm of smuggling, and actively participate in transporting others across the country (border) border in order to obtain high remuneration, which hinders the order of national (border) border management, causes supervision gaps, and also causes domestic problems. Social security and stability bring hidden dangers.
(2) Sectional transportation makes the crime of smuggling more concealed, but it is still difficult to escape legal sanctions.
The judiciary has severely cracked down on various smuggling and cross-border crimes in accordance with the law, continuously strengthened the coordination and cooperation between various administrative regions and various competent departments, insisted on cracking down on various smuggling crimes, and never let go of any omissions.
If the perpetrators reach an agreement to transport others across the country (border) smugglingly, and carry out the act of transporting, they shall be pursued, prosecuted and severely punished in accordance with the law.
【Regulations】
Article 25 and 321 of the Criminal Law of the People's Republic of China
Article 4 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 Obstructing State (Border) Administration
Article 288 of the Criminal Procedure Rules of the People's Procuratorate