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Viewpoint | Analysis of the defense of the crime of organizing others to cross the national (border) border.

Published:

2024-01-30

In recent years, the crime of organizing others to cross the national (border) border has occurred frequently. The author has sorted out the relevant legal provisions and defense ideas of this crime in combination with the cases handled, so as to share.

Legal provisions

Article 118 of the Criminal Law Whoever organizes others to secretly cross the country (border) shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years, and shall also be fined; in any of the following circumstances, he shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, and shall also be fined or confiscated of property:

(I) ringleaders of groups that organize others to secretly cross national (border) borders;

(II) repeatedly organizing others to secretly cross the national border (border) or organizing others to secretly cross the national border (border) with a large number of people;

(III) cause serious injury or death to the organized person;

(IV) depriving or restricting the personal freedom of the organized person;

(V) resisting inspection by means of violence or threat;

The amount of illegal income from (VI) is huge;

(VII) there are other particularly serious circumstances.

Any person who commits the crime mentioned in the preceding paragraph and commits criminal acts such as killing, injuring, raping or abducting and trafficking against an organized person, or killing or injuring an inspector, shall be punished in accordance with the provisions on combined punishment for several crimes.

constitution of crime

1. object elements:The object of this crime is the normal management order of the state to the state (border).

2. objective elements:This crime is objectively manifested as the act of illegally organizing others to cross the national (border) border. The so-called organization refers to the use of incitement, series, wooing, seduction, deception, coercion and other means to plan contacts and arrange others to secretly cross the national (border) border.

3. main elements:The subject of this crime is the general subject, that is, the natural person who has reached the age of criminal responsibility, has the capacity of criminal responsibility, and has carried out the act of organizing others to cross the national (border) border. The unit cannot be the subject of the crime of organizing others to secretly cross the national (border) border. The subject of this crime has no restrictions on country and place of residence. Whether it is a Chinese citizen (including residents of Hong Kong, Macao and Taiwan) or a foreigner, whether it is a resident of a border area or a resident of a transit area from the Mainland, it can constitute the organization of others to secretly cross the country. (Border) crime.

4. subjective elements:The subjective aspect of this crime is direct intent, and its subjective purpose is to illegally send or introduce others into the country (border). Subjectively, it does not necessarily have to be for profit. In practice, the crime of organizing others to cross the national (border) border is generally for the purpose of profit. However, it cannot be ruled out that the act of organizing others to cross the national (border) border for non-profit purposes, such as smuggling, human trafficking, fraud and other criminal activities for the purpose of organizing others to cross the national (border) border.

Sentencing Provisions

Those who 1. lead, plan, or direct others to secretly cross the national (border) border or, under the command of the ringleaders, commit acts such as wooing, inducing, or introducing others to secretly cross the national (border) border, shall be deemed as Article 318 of the Criminal Law. "Organizing others to secretly cross the national (border) border" shall be filed for prosecution, and shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years and a fine.

Whoever is 2. in any of the following circumstances shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, and concurrently be sentenced to a fine or confiscation of property:

(I) ringleaders of groups that organize others to secretly cross national (border) borders;

(II) repeatedly organizing or organizing more than 10 people to illegally cross the national (border) border;

(III) cause serious injury or death to the organized person;

(IV) depriving or restricting the personal freedom of the organized person;

(V) resisting inspection by means of violence or threat;

(VI) illegal income of more than 200000 yuan;

(VII) particularly serious circumstances.

defense thinking

1. not guilty plea

In conjunction with the constitutive elements of this crime, the defense of innocence may be carried out from the following perspectives:

(I) does not belong to the act of illegally crossing the national border (border)

Fraudulent entry and exit permits may constitute "fraud" in the "act of secretly crossing the country (border)" in the sense of criminal law, but it is limited to three factors: false entry and exit reasons, false identity, and fraudulent use of other people's identity cards. Fraud. If the perpetrator only provides false materials for the smooth examination and approval without involving the above three factors, the deception does not constitute an "act of illegally crossing the national (border) border" in the sense of criminal law, and a defense of innocence can be carried out.

(II) is not an organizational behavior

Organizational behavior is limited to leadership, planning, command, and soliciting, luring, and introduction under the command of the ringleaders, while the crime of organizing others to secretly cross the country (border) has many criminal links and complex participants, and for other assisting personnel, it cannot be identified as the organizer to be investigated for criminal responsibility.

The (III) did not know that the organizer had stolen across the country (border).

If other organizers under the command of the ringleaders provide assistance without knowing the illegal border crossing of others, they do not constitute this crime because of their lack of criminal intent. For example, in practice, the staff of the intermediary company helps others to apply for exit documents in the name of outbound tourism, and the real purpose of the outbound personnel is illegal work, immigration or gambling. Because the staff member does not know the real purpose of leaving the country, and does not have the subjective intention of organizing others to cross the national (border) border, he can plead innocent.

2. Misdemeanor Defense

(I) is not this crime and constitutes the crime of transporting others to cross the national (border) border.

The crime of transporting others to cross the national (border) border is objectively manifested in the act of the perpetrator accompanying the stowaway on foot or using vehicles, ships, aircraft and other means of transportation to transport the stowaway into and out of the national (border) border. If there is no organized act, it does not constitute the crime of organizing others to cross the national (border) border, and should be convicted and sentenced for the crime of transporting others to cross the national (border) border.

According to Case No. 1031 of the Criminal Trial Reference, knowing that others organized others to cross the national (border) border illegally, they participated in the purchase, contact, arrangement of ships, cars and other means of transportation, provided transportation services, sent illegal exit personnel to the departure port, guided the route, and even actively conducted English training for illegal immigrants to meet the needs of customs clearance, and handed over false documents inconsistent with the identity of exit personnel, acts such as arranging accommodation and sending air tickets are all to help organize others to cross the national (border) border, and due to the subjective purpose and lack of organization, it can not be regarded as a joint crime of organizing others to cross the national (border) border, but should be regarded as the crime of transporting others to cross the national (border) border. When the conviction is inevitable, if other crimes against the management of the national (border) can be identified, because the statutory sentence is relatively low, it will get a lighter sentence, which can be used as a misdemeanor defense.

(II) is not this crime, constitutes the crime of stealing across the country (border).

If it is not the "snakeheads" who are engaged in the criminal activities of organizing others to secretly cross the national (border) border in an organized and planned way to incite, woo, connect, mobilize and arrange others to secretly cross the national (border) border, but in the process of jointly secretly crossing the national (border) border, out of the loyalty of the world or the personal feelings of relatives and friends, to provide relevant help to individual people who secretly cross the national (border), it does not constitute the crime of organizing others to secretly cross the national (border) border, and if the circumstances are serious, it shall be dealt with as an accomplice in the crime of secretly crossing the national (border) border.

3. misdemeanor defense

attempted (I) crime

According to the provisions of the third paragraph of Article 1 of the interpretation on the administration of obstructing the national (border) border, those who organize others to cross the border secretly and are seized before or in the process of crossing the border secretly shall be punished as the crime (attempt) of organizing others to cross the border secretly. Therefore, the crime of organizing others to cross the border can only be accomplished if the harmful consequences of actually transporting the organized stowaway into and out of the border occur.

(II) in addition, according to the specific circumstances of the case and the perpetrator, the defense of misdemeanor can be carried out from the perspectives of the number of crimes, accomplices, and circumstances that do not constitute statutory aggravating circumstances.

Key words:

Viewpoint | A brief analysis of the boundary between the crime of organizing and leading pyramid selling activities and the crime of fraud.

Civil and commercial perspective... deprive the parties of the right to debate, can the retrial procedure be initiated.

Viewpoint | A brief analysis of the boundary between the crime of organizing and leading pyramid selling activities and the crime of fraud.

Civil and commercial perspective... deprive the parties of the right to debate, can the retrial procedure be initiated.