Recently, the Anti-Smuggling Bureau of the General Administration of Customs uniformly deployed a special operation to combat smuggling of some dual-use items, and the Anti-Smuggling Bureaus of the Customs of many places jointly enforced the law, which triggered a number of cases involving a wide range of areas. The case of a large enterprise represented by Wang Xin Tong Law Firm, which was suspected of smuggling goods and articles prohibited from export by the state, finally obtained the decision of not prosecuting after effective defense and cooperation from many parties.
In 2024, the Customs anti-smuggling department of the whole country carried out in-depth “National Gate Sharp Sword 2024” joint action, and the General Administration of Customs Anti-smuggling Bureau uniformly deployed special action on smuggling of some dual-use items to safeguard national security and development. At the same time, the “Regulations of the People's Republic of China on Export Control of Dual-Use Items” and the accompanying “Export Control List of the People's Republic of China on Export Control of Dual-Use Items” were introduced and implemented in 2024, and China's export control legal system was further improved. This article will combine the author's experience in handling cases to introduce the relevant knowledge and effective defense in criminal cases of smuggling of dual-use items.
First, the concept of dual-use items and import and export requirements
Definition of dual-use items:
According to Article 47 of the “Regulations of the People's Republic of China on Export Control of Dual-Use Items”, dual-use items refer to goods, technologies, services and other items with dual-use for civil and military purposes, which may affect the national security and fulfillment of the obligations of international non-proliferation, etc., and are subject to export control according to the law. Dual-use items include goods, technologies, services and related data, including nuclear technology, biotechnology, surveillance chemicals, missile-related items, easy-to-use chemicals, special steel, high-pressure water cannons and so on.
A license is required for the import and export of dual-use items:
The management of import and export of dual-use items follows a strict licensing system and regulatory measures, and China updates the Catalogue of Import and Export Licenses for Dual-use Items and Technologies every year to specify the scope of items that require import and export licenses. Enterprises need to apply for the Import and Export License for Dual-use Items from the Ministry of Commerce and other relevant departments according to the type of items. The license requirements are consistent with the information in the customs declaration, and must comply with national end-user and use management. Customs can inspect the items.
II. Crimes and Legal Responsibilities Involved in Illegal Export of Dual-use Items
Illegal export of dual-use items mainly involves the crime of smuggling goods and articles whose import and export are prohibited by the State. Paragraph 2 of Article 43 of the Export Control Law stipulates that anyone who violates the provisions of this Law by exporting controlled items prohibited for export by the State or by exporting controlled items without authorization shall be investigated for criminal liability in accordance with the law. Article 21 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law to the Handling of Criminal Cases of Smuggling (Legal Interpretation [2014] No. 10) stipulates that, if the import and export of goods or items restricted by the State from being imported or exported without permission constitutes a crime, the person shall be convicted and punished for the crime of smuggling of goods or items prohibited by the State from being imported or exported, and so on.
In terms of legal liability, Paragraph 3 of Article 151 of the Criminal Law provides that anyone who smuggles rare plants and their products and other goods or articles whose import or export is prohibited by the State shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be fined concurrently or singly; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall be fined concurrently.
As far as the sentencing amount and quantity standards are concerned, the first paragraph of Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law to the Handling of Criminal Cases of Smuggling (Legal Interpretation [2014] No. 10) clearly stipulates this. Generally speaking, the value of the goods of the crime up to 200,000 yuan constitutes a crime, 1 million yuan that is to reach five years of imprisonment in aggravating circumstances.
Key Note: As the crime only two sentencing gear, if the amount of money or tons of goods involved in the seriousness of the standard, the people involved in the case to actively strive for the surrender, accessory, merit and other mitigating circumstances can or should be mitigating circumstances of the downgrade is particularly important, can be followed up for the case for the relative non-prosecution or the application of probation to lay the foundation.
Third, the smuggling of goods and articles prohibited by the state to export the crime of effective defense
This case belongs to the smuggling of a crime, and has its particularity. Generally speaking, the illegal export of dual-use items are recognized as the smuggling of goods banned from import and export crime can be divided into the category of unlicensed customs clearance, to falsify the name, tampering with the composition of the export of the see often; as well as the category of licensed customs clearance, but the export license does not correspond to the actual trade situation. For class cases, the following are introduced accordingly with a certain degree of universality of the defense point of view, for the reader's reference.
1. False declaration of the name v.s. commodity classification difficulties
Smuggling of state-prohibited exports of goods, articles, the crime requires the subjective behavior of the perpetrator with “knowing” the state prohibits or restricts the export of intent, and the implementation of the act of evading customs supervision. In judicial practice, if the perpetrator due to technical disputes over the classification of goods led to the declaration of errors, and can prove that it has exercised reasonable care (such as reference to the customs pre-categorization opinion, industry practice, etc.), may not constitute a crime due to the lack of subjective intent. For example, dual-use items due to the chemical nature, the use of vague description of classification disputes, belong to the “technical declaration errors”, and intentional misrepresentation of the name of the smuggling behavior there is an essential difference. （In the case of Hong Min Er (Commercial) No. 720 (2011), the court held that the declaration of inconsistency due to technical disputes over the classification of commodities did not constitute smuggling, as the party submitted a third-party test report to prove the basis of classification.
“Customs classification” is considered one of the ‘three major technologies’ of the Customs, which is highly specialized and technical, and is also the most common factor involved in smuggling cases. In this type of case, the goods involved may have a wide variety of customs classification complexity, objectively there are categorization difficulties. If the suspects involved in the case are non-international trade and customs professionals, it may be difficult to directly and clearly determine the classification of the goods involved solely on the basis of the name and general attributes of the goods involved, and it may also be impossible to determine whether a license is applicable and what kind of licensing and management and other regulatory conditions are applicable through the HS code. Objective situation shows that the same kind of goods may also exist in different customs classification of advance rulings, which also proves that the customs classification of goods is indeed a technical problem.
However, it should be noted that in such cases, the judicial authorities will take into account the special industry background of the unit involved, the experience of the personnel involved, transaction anomalies, as well as behavioral concealment aspects of the presumption of subjective knowledge. Thus, the subjective aspects of the defense need to make adequate preparation and assessment.
2. False declaration of the trading country, but the export of evidence, or not prosecuted for minor offenses.
Judicial practice, part of the smuggling of goods and articles prohibited from exporting the crime of licensed cases, although the parties for the export license, but in fact the business is a re-export trade, to obtain permission to export the target country is not the final destination of the user, may be found to be false declaration of the country of trade. This behavior still constitutes a crime, but based on the subjective malice, objective behavior is relatively small and the possibility of compliance and rectification, according to Article 37 of the Criminal Law is currently effective in the fight for “minor circumstances of the crime not to prosecute” or a lighter penalty. Specifically, it is necessary to combine the validity status of the license, the nature of the false declaration and the control properties of the items involved in the case to make a comprehensive judgment.
For example, Company A purchased 80 tons of sodium sulfide domestically and exported it to Israel. As the export license for dual-use items and technologies applied for had not been approved by the Ministry of Commerce, the general manager of Company A, in order to avoid the risk of breach of contract, instructed his staff to use the export license for dual-use items and technologies with the country of destination of export as Thailand for customs clearance without the export license for dual-use items and technologies, and produced false invoices and relevant documents to declare Thailand as the country of destination for the export of 80 tons of sodium sulphide. The 80 tons of sodium sulphide were then exported to Israel via Thailand. The general manager of the company went to the Anti-Smuggling Bureau on his own initiative to cooperate with the investigation. After the investigation was completed, the case was transferred for examination and prosecution for the crime of smuggling goods whose import and export are prohibited by the State. However, the Procuratorate ultimately that the case of smuggling behavior is established, but the crime is minor, a company and its general manager to make a decision not to prosecute.
3. Dispute over the calculation of the amount involved
In the crime of smuggling goods and articles forbidden to be exported by the state, the controversy over the calculation of the amount of money mainly focuses on the categorization standard of the goods involved, the legitimacy of the basis for calculation, and the application of the law when the amount is in competition with the quantity. In judicial practice, a comprehensive determination is made in conjunction with the properties of the items involved, the smuggling method and the degree of harm, and in practice there are cases in which the determination of the amount has been overturned due to insufficient evidence or an error in the calculation method.
According to article 11 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, there is a double standard of “amount” and “quantity” for the crime of smuggling goods or articles prohibited from import or export by the State. In practice, if the smuggled goods in the same case involve both quantity and amount standards, it may lead to disputes over the choice of sentencing standards. For example, in Case No. (2024) Gui 1422 Criminal Investigation No. 389, the court directly applied the weight standard to the transportation of animals and plants in the infected area, without separately evaluating the value of other items. Here, special attention needs to be paid to the fact that the dual-use items regulated may be some of the elements of the items involved in the case, which should be screened in the calculation of the total amount and the assessment of the value, and will have an important impact on the final conviction and sentence of the case.
Due to the variety of items involved in such cases, each type of item has its own special industry background, effective defense requires in-depth understanding of the industry background, mastery of the details of the case, consideration of the background of the case and the deep-rooted reasons, and combined with the experience of defense lawyers in representing similar cases, to sort out personalized defense opinions, to maximize the interests of the parties, and to achieve the goal of effective defense.
