散客带货的走私犯罪研究

发布时间：2018-04-15 16:08

本文选题：散客带货 + 海外代购　；参考：《烟台大学》2016年硕士论文

【摘要】：散客带货并不是一个专有法律名词,而是一种经济现象。散客带货是指有机会在国外的游客等个人随身携带商品或者通过邮寄商品回国等方式进境的行为。散客带货有参与人数众多、主体身份“特殊”、通关即个人“携带”物品或者邮寄的形式进境、多是以盈利为目的、多是小额交易、一般通过网络完成交易、对象一般是普通货物、物品等特点;散客带货并不等同于海外代购,散客带货行为本身并不具违法性,但是引发出与行政法和刑法相关的许多问题。自用型散客带货在不超额的情况下完全符合法律规定,违反法律规定不缴或者漏缴应当缴纳的税额的则成立走私行为或者走私犯罪;代购型散客带货是走私行为,需要根据数额与情节来认定走私犯罪。我国《刑法》对于走私行为并没有做出规定,而是需要参照海关法规法规的相关规定处理,此种空白罪状容易产生争议,需要通过刑法立法尽快解决。随着经济发展和进境个人的增多,对于散客带货现象急需立法完善,法律、法规应当适当放宽对散客带货的管制,支持并引导散客带货的健康发展。行政法完善应当增设小额税;刑法完善则应当在第153条增设一个这样的条款:“中外游客等散客个人随身携带货物、物品进境,偷逃应当缴纳税款数额未达到较大标准的,一般不以走私犯罪论处,只处以行政处罚,其中游客个人携带货物、物品进境销售牟利的但并非以此为业的也包含在此列;但是,从事跨境贸易的电子商务的企业或者个人利用散客带货逃避关税的,严格依照本法的相关规定定罪处罚”。散客带货这个看似简单实则复杂的现象应当对其进行合理规范。
[Abstract]:Bulk cargo is not a proprietary legal term, but an economic phenomenon.The individual who has the opportunity to bring goods with him or to return to the country by mail is the behavior of the individual who has the opportunity to carry goods with him or to return to the country by mail.There are a large number of individuals who take goods with them, the main body status is "special", and customs clearance means that individuals "carry" articles or mail in the form of entering the country, most of them for profit purposes, mostly small transactions, and generally complete transactions through the network.The object is the common goods, articles and other characteristics; the bulk of goods is not the same as overseas purchase, the behavior of carrying goods is not illegal, but it has caused many problems related to administrative law and criminal law.If the self-use bulk passenger carries goods in full accordance with the provisions of the law without excess, if he fails to pay or fails to pay the tax amount due to be paid in violation of the provisions of the law, he shall establish an act of smuggling or a crime of smuggling; if the bulk passenger carries goods on behalf of the individual, it shall be a smuggling act.The crime of smuggling should be determined according to the amount and circumstances.The Criminal Law of our country does not make the stipulation for the smuggling behavior, but needs to refer to the relevant provisions of the customs laws and regulations to deal with, this kind of blank crime is easy to produce the dispute, needs to be solved as soon as possible through the criminal law legislation.With the development of economy and the increasing number of individuals entering the country, it is urgent to perfect the legislation for the phenomenon of bulk cargoes. The laws and regulations should relax the control of bulk cargoes and support and guide the healthy development of bulk cargoes.A small amount of tax should be added to the perfection of administrative law, and a provision of such a provision should be added to Article 153 of the Criminal Law: "Chinese and foreign tourists and other individual individuals who carry goods, articles into the country and evading shall pay less than the larger amount of tax,"Generally speaking, the crime of smuggling is not treated as a crime, and only administrative punishment is imposed, in which the tourists personally carry goods and articles for profit but are not included in this category; however,Enterprises or individuals engaged in cross-border electronic commerce who take advantage of bulk passengers to carry goods to evade customs duties shall be convicted and punished strictly in accordance with the relevant provisions of this Law. "The seemingly simple and complex phenomenon of bulk cargoes should be reasonably standardized.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3

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