走私罪在立法中存在的问题及完善对策
发布时间:2018-10-30 14:30
【摘要】:走私行为往往会对一个国家的市场经济秩序、社会稳定产生严重的影响,也是对国家海关监管秩序的一种破坏。很多国家将这种行为规定为犯罪。例如在美国,走私罪属于联邦犯罪,规定在了《美国法典》当中;日本将走私犯罪规定在其《海关法》当中等等。我国也不例外。我国早在西周时期,就出现了对走私行为的有关规定,并延续至后续各个朝代。新中国成立以后,经过多次立法修改,对走私犯罪的规定日趋完善。但在我国的现行《刑法》及相关规定中,针对走私罪的立法仍存在着一些问题。主要体现在立法体例、法律规定完备程度、单位犯罪刑罚问题以及间接走私行为的认定等几方面。在立法体例上,主要表现为对罪名的分类标准不够明确,在“走私罪”被规定在《刑法》专节的情况下,却没有将走私毒品罪和走私制毒物品罪纳入其中;在“走私罪”专节内的各个走私罪罪名的设置也存在标准不明确的情况。在法律规定完备程度上,部分走私犯罪量刑情节的具体标准没有规定,珍贵动物制品的价格认定标准不够完备,部分司法解释存在滞后性,一些已经废止的规定仍被引用等等。在单位刑罚问题上,主要体现在刑罚不均衡和刑罚种类单一两个方面。在刑罚不均衡方面,表现为除走私普通货物、物品罪外,其他走私罪对单位直接负责的主管人员和其他直接责任人员的处罚是和自然人犯罪一样的,没有区别,但是在走私普通货物、物品罪中却进行了区分。在刑罚种类方面,表现为对犯罪单位本身的处罚类型较为单一,仅规定了罚金刑,不能起到很好的刑罚效果。在对间接走私行为规定方面,,主要体现在对犯罪地点的规定上,在理解上存在困惑,会对司法实践造成不利影响。本文中,笔者从上述几个方面进行分析,并针对每一部分出现的问题提出相应的对策建议。
[Abstract]:Smuggling will often have a serious impact on the market economic order and social stability of a country, and it is also a kind of damage to the national customs supervision order. Many countries criminalize such conduct. For example, in the United States, the crime of smuggling is a federal crime, which is stipulated in the United States Code; in Japan, the crime of smuggling is stipulated in its Customs Law, and so on. China is no exception. As early as the Western Zhou Dynasty, the relevant regulations on smuggling appeared in China, and continued to the subsequent dynasties. After the founding of the people's Republic of China, after many legislative amendments, the regulations on smuggling crimes have become increasingly perfect. However, there are still some problems in the legislation of the crime of smuggling in the present Criminal Law of our country. It is mainly embodied in the legislative style, the degree of completeness of legal provisions, the punishment of unit crime and the identification of indirect smuggling. In the legislative style, the main manifestation is that the classification standard of the crime is not clear enough, but the crime of smuggling drugs and the crime of smuggling drug articles have not been included in the special section of the Criminal Law when the crime of "smuggling" has been stipulated in the special section of the Criminal Law. In the special section of the crime of smuggling, there is also unclear standard of each crime of smuggling. In terms of the completeness of the legal provisions, the specific standard of sentencing circumstances of some smuggling crimes is not stipulated, the standard of price determination of precious animal products is not complete, some judicial interpretations are lagging behind, some of the provisions that have been abolished are still cited and so on. On the issue of unit penalty, it is mainly reflected in two aspects: the imbalance of penalty and the single type of penalty. In the aspect of penalty imbalance, except for the crime of smuggling ordinary goods and articles, the punishment of the persons in charge and other persons directly responsible for the crime of smuggling to the unit is the same as that of the natural person, and there is no difference between the punishment and the crime of natural person. But the crime of smuggling ordinary goods and articles is distinguished. In the aspect of penalty type, it shows that the punishment type of the criminal unit itself is relatively single, which only prescribes the fine penalty, and can not play a very good penalty effect. In the aspect of the regulation of indirect smuggling, it is mainly reflected in the regulation of the place where the crime is committed, and there is confusion in the understanding, which will have a negative impact on the judicial practice. In this paper, the author analyzes from the above several aspects, and puts forward corresponding countermeasures and suggestions to the problems in each part.
【学位授予单位】:中国社会科学院研究生院
【学位级别】:硕士
【学位授予年份】:2014
【分类号】:D924.36
本文编号:2300268
[Abstract]:Smuggling will often have a serious impact on the market economic order and social stability of a country, and it is also a kind of damage to the national customs supervision order. Many countries criminalize such conduct. For example, in the United States, the crime of smuggling is a federal crime, which is stipulated in the United States Code; in Japan, the crime of smuggling is stipulated in its Customs Law, and so on. China is no exception. As early as the Western Zhou Dynasty, the relevant regulations on smuggling appeared in China, and continued to the subsequent dynasties. After the founding of the people's Republic of China, after many legislative amendments, the regulations on smuggling crimes have become increasingly perfect. However, there are still some problems in the legislation of the crime of smuggling in the present Criminal Law of our country. It is mainly embodied in the legislative style, the degree of completeness of legal provisions, the punishment of unit crime and the identification of indirect smuggling. In the legislative style, the main manifestation is that the classification standard of the crime is not clear enough, but the crime of smuggling drugs and the crime of smuggling drug articles have not been included in the special section of the Criminal Law when the crime of "smuggling" has been stipulated in the special section of the Criminal Law. In the special section of the crime of smuggling, there is also unclear standard of each crime of smuggling. In terms of the completeness of the legal provisions, the specific standard of sentencing circumstances of some smuggling crimes is not stipulated, the standard of price determination of precious animal products is not complete, some judicial interpretations are lagging behind, some of the provisions that have been abolished are still cited and so on. On the issue of unit penalty, it is mainly reflected in two aspects: the imbalance of penalty and the single type of penalty. In the aspect of penalty imbalance, except for the crime of smuggling ordinary goods and articles, the punishment of the persons in charge and other persons directly responsible for the crime of smuggling to the unit is the same as that of the natural person, and there is no difference between the punishment and the crime of natural person. But the crime of smuggling ordinary goods and articles is distinguished. In the aspect of penalty type, it shows that the punishment type of the criminal unit itself is relatively single, which only prescribes the fine penalty, and can not play a very good penalty effect. In the aspect of the regulation of indirect smuggling, it is mainly reflected in the regulation of the place where the crime is committed, and there is confusion in the understanding, which will have a negative impact on the judicial practice. In this paper, the author analyzes from the above several aspects, and puts forward corresponding countermeasures and suggestions to the problems in each part.
【学位授予单位】:中国社会科学院研究生院
【学位级别】:硕士
【学位授予年份】:2014
【分类号】:D924.36
【参考文献】
相关期刊论文 前4条
1 纪小蕴;;从空姐代购案看海外代购涉嫌走私普通货物、物品罪的相关问题[J];法制博览(中旬刊);2013年07期
2 李昌林;论走私罪及其立法完善[J];天津市政法管理干部学院学报;2002年01期
3 贺卫;胡春健;于爽;朱峰;;单位走私犯罪法律适用若干问题探讨[J];政治与法律;2009年04期
4 曹坚;樊彦敏;;走私珍贵动物及其制品犯罪案件司法实践问题研究——以上海市近年来司法机关查办相关案件为样本[J];政治与法律;2012年07期
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