Subject
The subject is a general subject, that is, any unit and natural person who has reached the age of criminal responsibility and has criminal responsibility can become a criminal subject. According to the provisions of the Criminal Law and relevant judicial interpretations, if a company, enterprise, or institution established by an individual for criminal activities commits a crime, or if a company, enterprise, or institution is established and commits a crime as its main activity, it shall not be treated as a unit crime.
The subjects involved in cross-border e-commerce include consumers, cross-border e-commerce enterprises, cross-border e-commerce trading platforms, warehousing enterprises, logistics enterprises, etc. Ordinary consumers, warehousing enterprises, and cross-border e-commerce trading platforms that only serve as third-party trading platforms are less likely to participate in smuggling.
In contrast, cross-border e-commerce enterprises and platform enterprises that directly participate in the import of goods are more familiar with the process of cross-border e-commerce imports, and have closer ties with warehousing, logistics, and support enterprises, and they are more likely to participate in smuggling.
The parties usually act as the person in charge of a cross-border e-commerce enterprise or a cross-border e-commerce trading platform or other directly responsible persons, and use the name of the company to engage in smuggling. If they are suspected of committing a crime, such behavior should be prosecuted in accordance with the unit smuggling, and the directly responsible supervisors and other directly responsible persons should also be prosecuted. Logistics companies and payment companies that know that the other party is smuggling cross-border e-commerce retail imported goods through false trade declarations and provide them with false logistics orders or other convenient ones should be treated as smuggling accomplices and dealt with differently depending on the severity of the circumstances.
Subjective aspect
The subjective aspect is manifested as intent, including direct intent and indirect intent, that is, the psychological state of knowing that the behavior should pay tariffs and other customs taxes collected on behalf of import and export links, and hoping or allowing the harmful consequences of evading the payable taxes to occur.
According to the definition of “smuggling” in Article 82 of the Customs Law, the party concerned must have the subjective intention of “evading customs supervision” to be identified as smuggling. Therefore, it is not easy to distinguish whether the above-mentioned behavior of the party concerned is an act of violating customs supervision regulations or smuggling based on “using other people’s identity information to swipe orders” and other behaviors. It should also be judged comprehensively in combination with other behaviors of the party concerned.
In general customs clearance smuggling cases, objective behaviors that can reflect the subjective intention of the party concerned to evade customs supervision mainly include the use of forged, altered manuals, documents, seals, account books, electronic data and other false means to enable the goods to pass customs smoothly.
In cross-border e-commerce customs clearance smuggling cases, only when the imported goods reach the consistency of the “three orders” comparison will the customs release them, that is, the payment orders, orders, and logistics orders pushed to the customs by platform enterprises, payment enterprises, and logistics enterprises must match, which requires prior collusion with payment, logistics and other enterprises. Its prominent manifestation is to falsely report order, logistics order, and payment order information, and transmit corresponding false data to declare to the customs.