202 1-07-30

Recently, the Anti-smuggling Bureau of Nanjing Customs organized a special campaign to crack down on fruit smuggling and arrested 9 suspects. The main case is that Fu, a native of Huai 'an, Jiangsu Province, set up an import and export trading company to import fruits from Southeast Asia and sell them at home. Normally imported fruits should be truthfully declared to the customs in the form of general trade, and customs duties and value-added tax should be paid. At the same time, the customs should also conduct inspection and quarantine on imported fruits. However, in order to avoid the national tax, reduce the cost of fruit, and then seize the fruit market, Fu took the initiative to contact the smuggling gang and transported the fruits purchased overseas to the border port by car. Border smuggling gangs smuggle fruits into border trade under the guise of "border people". After the goods are smuggled into the country, a special person is responsible for selling the goods to fruit markets all over the country for illegal benefits. It was initially verified that the gang smuggled about 65.438+0.7 million tons of pitaya, and the case value was as high as 76.5438+0 billion yuan.

Smuggling fruit belongs to the crime of smuggling ordinary goods, and smuggling into the country through border trade is also a common method used by smugglers. China's policy allows border residents to enjoy a duty-free commodity quota of 8,000 yuan per person per day at designated open points or markets to meet the needs of border residents. This is the so-called "border trade" trade policy. This policy is often used by smugglers.

The fruits hit by the Customs Anti-smuggling Bureau this time are mainly fresh pitaya, and the calculation of tax evasion is an important basis for conviction and sentencing. Fresh pitaya (HS code 08 10908000) has an MFN rate of 20% and VAT of 9%. However, according to the second paragraph of Article 10 of the Import and Export Tariff Regulations of People's Republic of China (PRC), "the agreed tax rate shall apply to imported goods originating from countries or regions that have signed regional trade agreements with People's Republic of China (PRC) containing preferential tariff clauses". If it is fresh pitaya produced in ASEAN (HS code 08 10908000), the China-ASEAN agreed tax rate is applicable, with tariff of 0 and VAT of 9%.

Whether this case is a unit crime or an individual crime can be discussed in combination with the case. According to the Supreme People's Court's Interpretation on Relevant Issues Concerning the Specific Application of Law in the Trial of [Unit Crime Cases], companies, enterprises and institutions established by individuals for illegal and criminal activities commit crimes, or the main activities of companies, enterprises and institutions after their establishment are to commit crimes, they are not punished as unit crimes. In real life, some companies have formal main business, but some business transactions do not operate in the normal way, or occasionally commit illegal acts, which can be identified as unit crimes; However, if a unit is established for the main purpose of committing crimes, or the main activity after its establishment is to commit crimes, even if it occasionally engages in some legitimate business, it will generally not be recognized as a unit crime. Among them, the amount and proportion of legal business and illegal business require the defendant to provide relevant evidence (such as account books, transaction details, etc.). ) to prove.