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In order to research and settle the new things and problems that the public security organs and the judicial organs have met with in the recent years in handling the cases on crime of smuggling, the Supreme People's Court, the Supreme People's Procuratorate and the General Administration of Customs have jointly carried out investigations and surveys, and propose the following opinions regarding the issues of procedures, evidence and application of law, for handling cases of the crime of smuggling in accordance with the revised Criminal Law and the relevant provisions in the judicial interpretations, as well as on the basis of summing up the work experiences in respect of investigation, approval of arrest, prosecution and trial: I. JURISDICTION OVER CASES OF SMUGGLING In accordance with the Criminal Litigation Law, a criminal case of smuggling shall be filed for investigation by the investigation organ at the place where the crime of smuggling is committed. Since a criminal case of smuggling is complicated and has many links, the places where the crime is committed might involve more than one place where the crime occurred, including the places of import (entry) and export (exit) of goods or articles, the place of customs declaration, and the place of cancellation after verification. In the event of a crime of smuggling provided in Article 154 or 155 of the Criminal Law, the places of sale, transport, purchase and trafficking of the smuggled goods or articles shall all be the places where the crime occurred. If there are more than one place where the crime of smuggling occurred, the criminal case of smuggling shall be under the jurisdiction of the investigation organ which first accepted it or the investigation organ at the principal place where the crime of smuggling is committed. If the jurisdiction is in dispute, the case shall be under the jurisdiction of the investigation organ designated by the common superior investigation organ for the crime of smuggling. A criminal case of smuggling which occurred on the sea (water) shall be under the jurisdiction of the investigation organ for crimes of smuggling in this jurisdictional area. However, if an investigation organ continues pursuing a smuggling vessel by covering more than one jurisdictional area, the case shall be under the jurisdiction of the investigation organ for crimes of smuggling that seized the smuggling vessel. The people's procuratorate shall, when accepting a criminal case of smuggling requested for approval of arrest by the investigation organ for crimes of smuggling and transferred by the said investigation organ for examination before prosecution, and the people's court shall, when trying a criminal case of smuggling over which the people's procuratorate initiates a public prosecution, comply with the relevant provisions in the "Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice and the General Administration of Customs on Some Issues concerning the Application of the Criminal Litigation Procedure for the Investigation Organs for Crimes of Smuggling to Handle Cases of the Crime of Smuggling" (No. 742 [1998] of the General Administration of Customs concerning Investigation). II. COLLECTION AND PRESERVATION OF ELECTRONIC DATA EVIDENCE The investigation organ for crimes of smuggling shall collect and preserve electronic data such as the e-mails, electronic contracts, electronic account books, an entity's internal electronic information, etc., which could prove true circumstances of a criminal case of smuggling, by considering them criminal evidence. The investigators shall produce written statements on the process of drawing and reproducing the electronic data, and record the subject matter of the case, the object, the contents, the time and place of drawing and reproducing the electronic data, the specifications, type and document format of the electronic data. The producer who draws and reproduces the electronic data, the holder of the electronic data and the witnesses who can prove the process of drawing and reproducing the electronic data shall sign their names and affix their seals on the said written statements, which shall be transferred along with the drawn and reproduced electronic data. Where the holder of the electronic data is not involved in the case or refuses to sign his name, the investigators shall record the situation; a conditioned holder may take a photograph or make a video record of the process of drawing and reproducing the relevant electronic data. III. APPRAISING THE AMOUNT OF THE EVADED OR DODGED DUTIES PAYABLE WHEN HANDLING CASES OF SMUGGLING COMMON GOODS OR ARTICLES With respect to the appraisal of the amount of evaded or dodged duties payable in a case that a smuggler is suspected to be involved, the customs at the place of jurisdiction over the criminal case of smuggling shall, when handling the criminal case of smuggling common goods or articles, issue the "Customs Testimonial of Appraisal of the Evaded or Dodged Duties Payable over the Goods or Articles of Suspected Smuggling" (hereinafter referred to the "Testimonial of Appraisal"). The "Testimonial of Appraisal" issued by the customs may, upon examination and confirmation by the investigation organ for crimes of smuggling, the people's procuratorate and the people's court, be regarded as the basis for handling the case and the evidence for making condemnation and meting out punishment. Where the investigation organ for crimes of smuggling, the people's procuratorate or the people's court proposes objections to the "Testimonial of Appraisal", or considers it necessary to make supplementary appraisal of or re-appraise the amount of evaded or dodged duties due to any change in the fact for such appraisal, it may demand the original customs that issued the "Testimonial of Appraisal" to make supplementary appraisal of or re-appraise the said amount. Where a suspect or defendant of the crime of smuggling, or the defender has any objection on the "Testimonial of Appraisal", and thus applies to the investigation organ, the people's procuratorate or the people's court for re-appraisal, the re-appraisal may be carried out upon consent by the investigation organ, the people's procuratorate or the people's court, provided that special persons shall be separately sent to do it. IV. CONDITIONS FOR ARRESTING SUSPECTS OF THE CRIME OF SMUGGLING The request for arresting and the examination and approval of arresting a suspect of the crime of smuggling shall be handled under the conditions for arrest provided in Article 66 of the Criminal Litigation Law. Usually, such conditions shall be grasped according to the following standards: (I) There is evidence to prove the fact of the crime of smuggling. 1. There is evidence to prove that the fact of the crime of smuggling has occurred. If there is evidence to prove that the fact of the crime of smuggling has occurred, the following two conditions shall be simultaneously met: (a) there is evidence to prove that the violation of the laws and regulations of the state to evade the customs' surveillance has occurred; and (b) the quantity and value of the smuggled goods or articles which are distrained or which can be proved by evidence, or the amount of evaded or dodged duties has reached the starting point for criminal punishment provided in the Criminal Law and the relevant judicial interpretations. 2. There is evidence to prove that the crime of smuggling is committed by the criminal suspect. Under any of the following circumstances, it may be considered that the crime of smuggling is committed by the criminal suspect: (a) the criminal suspect is found on the spot to be committing the crime of smuggling; (b) it is indicated in audio-visual materials that the criminal suspect has committed the crime of smuggling; (c) the criminal suspect has confessed to the crime; (d) there is testimony of witness to identify the criminal suspect; (e) there are statements of any criminal suspect in the same case; or (f) there is other evidence which can prove that the criminal suspect has committed the crime of smuggling. 3. The evidence proving that the criminal suspect has committed the crime of smuggling has been verified. The evidence proving that the criminal suspect has committed the crime of smuggling can be considered to have been verified if any of the following requirements on evidence is met: (a) The criminal suspect is found on the spot to be committing the crime, which can be proved by evidence such as records of on-the-spot inquests and examination, records of interrogation, records of the customs' distrainment and inquiries or records of the customs' inspection; (b) The criminal suspect's statements can be confirmed by other evidence; (c) The testimonies of witnesses can be confirmed by each other; (d) The testimonies of witnesses or statements of other criminal in the same case can be confirmed by other evidence and vice versa; or (e) Other evidence proving that the criminal suspect has committed the crime of smuggling has been verified. (II) The criminal suspect may be imposed with a criminal punishment of fixed-term imprisonment at least. The criminal punishment of fixed-term imprisonment at least may be imposed upon the suspect of the crime of smuggling in accordance with Articles 151, 152, 153, 347, 350, etc. of the Criminal Law and the provisions in the relevant judicial interpretations including the "Interpretation of the Supreme People's Court on Some Issues concerning the Specific Application of Law for Trying Cases of the Crime of Smuggling", and in combination with the verified facts of the crime of smuggling. (III) The measure of guarantor pending trial or residential surveillance, would be insufficient to prevent the occurrence of danger to society, thus necessitating arrest. It mainly refers to that the suspect of the crime of smuggling may hamper the normal process of criminal litigation activities by escaping, committing suicide, tallying confessions, interfering the witness from giving testimony, or falsifying or destroying evidence or by other means, or is possible to retaliate by violence or to continue committing crimes. V. ASCERTAINING THE SUBJECTIVE INTENTION OF THE SUSPECT OR DEFENDANT OF THE CRIME OF SMUGGLING Where an actor clearly knows that his act violates the laws or regulations of the state, but evades the customs' surveillance, and evades or dodges the duties payable on the inward or outward goods or articles, or evades the prohibitive administration of the state on entry and exit, and wishes or allows the harmful consequence to occur, he shall be ascertained to have the subjective intention of smuggling. "Clear knowing" in the subjective intention of smuggling shall refer to that the actor knows or ought to know the act he commits is smuggling. Under any of the following circumstances, it may be ascertained as "clearly know", unless there is evidence to prove that the actor is indeed deceived: (I) He evades the customs' surveillance, transports, brings or posts the goods or articles prohibited by the state from entry or exit; (II) He uses specially-made equipment or means of transportation to smuggle goods or articles; (III) He transports (or transports by lighter), purchases or traffics illegal inward or outward goods or articles at places such as uncustomed wharfs, sea coasts, river banks, borders, etc. without consent from the customs; (IV) He provides false commercial documents such as contracts, invoices, certificates, etc. when entrusting others to go through the customs release formalities; (V) He entrusts others to undertake agency of the import (export) business at a rate which is obviously lower than the duties payable on goods of normal import (export); (VI) He has ever been imposed with criminal punishment or administrative punishment due to the same kind of smuggling acts; or (VII) Any other circumstances which can be proved by evidence. VI. HANDLING CASES IN WHICH THE ACTORS ARE NOT CLEAR ABOUT THE SPECIFIC OBJECTS THEY SMUGGLE Where a suspect of the crime of smuggling subjectively has the intention of the crime of smuggling, but is not clear about the specific objects he smuggles, the crime of smuggling shall be affected to be constituted, and he shall be convicted and punished in light of the actually smuggled objects. However, if there is indeed evidence to prove that the actor was deceived to have a wrong recognition of the smuggled objects, he may be imposed with a lighter punishment. VII. PUNISHMENT ON THE ACT OF SMUGGLING PRODUCTS MADE OF PRECIOUS AND RARE WILDLIFE Whoever smuggles products made of precious and rare wildlife shall be punished in accordance with Paragraphs 2, 4 and 5 of Article 151 of the Criminal Law and the relevant provisions in Article 4 of the "Interpretation of the Supreme People's Court on Some Issues concerning the Specific Application of Law for Trying Cases of the Crime of Smuggling" (hereinafter referred to the "Interpretation"), but is under either of the following circumstances with the consequence to be minor, he shall generally not be regarded to have committed a crime and punished for it: (I) The products made of precious and rare wildlife are permitted to be traded at the place of purchase; (II) An entry person bring products made of precious and rare wildlife for keeping them as memorial or using them as gifts, without the purpose of making profits. Whoever is simultaneously under both the above two circumstances, and meets the standards for meting out punishment provided in Paragraph 3 of Article 4 of the "Interpretation", shall generally be imposed with fixed-term imprisonment of not more than five years, and shall also be fined; if he meets the standards for meting out punishment provided in Paragraph 4 of Article 4 of the "Interpretation", he shall generally be imposed with fixed-term imprisonment of not less than five years, and shall also be fined. VIII. CONVICTION OF THE ACT OF SMUGGLING OLD AUTOMOBILES, DISMANTLED AUTOMOBILES AND OTHER SIMILAR GOODS OR ARTICLES Whoever smuggles the goods or articles clearly prohibited by the state from import and export, other than those provided in Articles 151, 152, 347 and 350 of the Criminal Law, for example, old automobiles, dismantled automobiles, goods infringing upon intellectual properties, animals and plants and products thereof originating from epidemic areas, and so on, shall be investigated for criminal liabilities for the crime of smuggling common goods or articles in accordance with Article 153 of the Criminal Law. IX. DETERMINING THE NATURE OF AND PUNISHING THE ACT OF USING DUTY-RELATED DOCUMENTS SUCH AS PURCHASED PROCESSING TRADE REGISTRATION HANDBOOKS OR CERTAIN APPROVAL DOCUMENTS ON DUTY REDUCTION OR EXEMPTION TO IMPORT GOODS Duty-related documents such as processing trade registration handbooks and certain approval documents on duty reduction or exemption, are documents granted by the customs in accordance with the laws and regulations of the state and the relevant policies to certain enterprises for engaging in operation of bonded goods and enjoying preferential treatment of duty reduction or exemption. Using duty-related documents such as purchased processing trade registration handbooks or certain approval documents on duty reduction or exemption, to import goods, is actually to fraudulently declare the goods of common trade as the bonded goods of processing trade or certain goods of duty reduction or exemption and import them, so as to realize the purpose of evading or dodging the duties payable. Thus it shall be regarded as the crime of smuggling common goods or articles for conviction and punishment in accordance with Article 153 of the Criminal Law. If the actor conspires with smugglers to sell the above said duty-related documents, or after selling the approval documents, assists the buyer in going through the formalities of customs release for import by means such as providing seals, falsely declaring to the customs the bonded goods or certain goods of duty reduction or exemption, the seller shall be convicted and punished as an accomplice in the crime of smuggling in accordance with Article 156 of the Criminal Law. Whoever buys or sells the above said duty-related documents with the case being serious, but has not imported the goods, shall be convicted and punished in accordance with Article 280 of the Criminal Law. X. ASCERTAINMENT OF THE ACT OF FRAUDULENTLY OBTAINING THE CUSTOMS' CANCELLATION AFTER VERIFICATION IN PROCESSING TRADE ACTIVITIES Whoever, in the activities of processing trade operation, fraudulently obtains the customs' cancellation after verification by means such as false export, false carry-over or utilization of false documents, thus causing the bonded goods or articles to fall beyond the customs' surveillance, and resulting in losses of the state's tax shall, if the case is serious, the offender shall be subject to criminal liabilities for the crime of smuggling common goods or articles in accordance with Article 153 of the Criminal Law. However, if there is evidence to prove that the bonded goods fall beyond the customs' surveillance due to force majeure, and the operator is unable to go through normal formalities to fraudulently obtain the customs' cancellation after verification, it shall not be ascertained as the crime of smuggling. XI. ASCERTAINMENT OF THE ACTUAL TRANSACTION VALUE IN CASES OF THE CRIME OF SMUGGLING BY FALSELY REPORTING THE PRICE The act of falsely declaring the price in cases of the crime of smuggling shall refer to that the criminal suspect or defendant declare to the customs, when importing or exporting goods or articles, the price of imported or exported goods or articles lower or higher than the actual transaction value of the imported or exported goods. The actual transaction value may, if both the authentic and false documents including contracts and invoices, are unable to be obtained, be ascertained in light of the criminal suspect's or defendant's channel of exchange payment, flow of funds, account books, the authentic trading method of domestic and overseas consigner and consignee, as well as other evidential materials which can prove the actual transaction value of the imported or exported goods. XII. WHETHER THE VALUE-ADDED TAX PAID FOR SELLING THE SMUGGLED GOODS SHALL BE DEDUCTED FROM THE AMOUNT OF EVADED OR DODGED DUTIES PAYABLE The issuance of special invoices for value-added tax and payment of value-added tax by the suspect of the crime of smuggling for selling the smuggled goods, are a means to obtain illegal proceeds in the circulation field after the smuggling act is completed, and shall belong to illegal issuance of special invoices for value-added tax. If the suspect of the crime of smuggling has actually paid value-added tax for the smuggled goods due to sale of them, the amount of the paid value-added tax shall not, when the amount of evaded or dodged duties payable for the smuggled goods is appraised, be deducted from the amount of evaded or dodged duties payable. XIII. UNDERSTANDING "SELLING FOR PROFITS" PROVIDED IN ARTICLE 154 OF THE CRIMINAL LAW "Selling for profits" provided in Items (a) and (b) of Article 154 of the Criminal Law shall refer to that the actor unauthorizedly sells bonded goods or certain goods of duty reduction or exemption under the customs' surveillance for making illegal benefits subjectively. Whether this kind of act constitutes a crime shall be ascertained upon whether the evaded or dodged duties payable have reached the standard of amount provided in Article 153 of the Criminal Law and the relevant judicial interpretations. While whether the benefits are actually obtained or how many benefits are obtained shall not affect the conviction. XIV. HOW TO INVESTIGATE THE TRANSPORTER'S CRIMINAL LIABILITIES IN THE CASES OF THE CRIME OF SMUGGLING ON THE SEA The transporters, purchasers and traffickers who commit crimes of smuggling on the sea, provided in Item (b) of Article 155 of the Criminal Law, shall be investigated for criminal liabilities. For a transporter, usually the responsible persons or the principal liable persons of the means of transportation shall be investigated for criminal liabilities. However, for those who conspire in advance, raise funds to smuggle, or use particular means of transportation for smuggling to commit the criminal activities of smuggling, other participants may also be investigated for criminal liabilities. XV. UNDERSTANDING "CONSPIRING WITH CRIMINALS OF SMUGGLING" PROVIDED IN ARTICLE 156 OF THE CRIMINAL LAW Conspiracy shall refer to the common intention of smuggling formed between or among the criminals in advance or during their activities. The following circumstances may be ascertained as conspiracy: (I) to consent to, although clearly knowing that others are engaging in smuggling activities, provide them with loans, funds, account numbers, invoices, certificates, customs documents, and provide conveniences of transport, custody, post or else; (II) to provide assistances mentioned in the preceding item for the same criminal of smuggling in his smuggling act for more than one time. XVI. ASCERTAINMENT OF CONNIVING AT THE CRIME OF SMUGGLING In accordance with Article 411 of the Criminal Law, if a customs functionary obliged for certain surveillance engages in malpractices for personal gain, and makes use of his power to connive at the criminal acts of smuggling, with the case being serious, it shall constitute the crime of conniving at smuggling. The act of conniving at smuggling shall generally be negative omission. If a customs functionary conspires with the smugglers, and actively cooperates with the smugglers to evade the customs' surveillance in the process of conniving at smuggling, or is distributed illicit money after conniving at smuggling, he shall be investigated for criminal liabilities for the crime of joint smuggling. Where a customs functionary takes bribes and then connives at smuggling, he shall be imposed with combined punishment for the crime of taking bribery and the crime of conniving at smuggling. XVII. DETERMINING THE LITIGATION REPRESENTATIVE OF AN ENTITY COMMITTING THE CRIME OF SMUGGLING AND THE RELEVANT ISSUES The litigation representative of an entity committing the crime of smuggling shall be the legal representative or the major person-in-charge of the entity. Where the legal representative or principal responsible person of the entity is investigated for criminal liabilities in accordance with the law or is unable to participate in the criminal litigation due to other reasons, the people's procuratorate shall separately determine another responsible person of the prosecuted entity as the litigation representative to participate in the litigation. The litigation representative of a prosecuted entity who receives the notice calling for appearing in court shall appear in court for response to the lawsuit. If he refuses to appear in court, the people's court may, when necessary, constrain him to appear in court. For a case of the crime of smuggling by an entity, if neither the persons who are directly in charge nor the other persons who are directly responsible for the offence can be brought to justice, the entity may be investigated for criminal liabilities ahead of time once the facts on the entity's crime of smuggling are clear, the evidence is adequate and true, and a litigation representative can be determined to represent the entity to participate in the criminal litigation activities. Where the prosecuted entity has no suitable person to act as the litigation representative to appear in court, the persons in the entity who are directly in charge or other persons who are directly responsible for the offence may be investigated for criminal liabilities ahead of time in accordance with the clauses on crimes committed by entities, although there are no litigation conditions for investigating the entity's criminal liabilities. The people's court shall, when adjudicating the persons who are directly in charge or the persons who are directly responsible for the offence with regard to the crime committed by the entity, meanwhile adjudicate the distrained and frozen smuggled goods or articles, illegal proceeds and the instruments for crime of smuggling that the criminal entity owns, and shall recover and confiscate them. XVIII. ASCERTAINMENT OF THE CRIME OF SMUGGLING BY THE ENTITY AS WELL AS THE PERSONS WHO ARE DIRECTLY IN CHARGE AND THE PERSONS WHO ARE DIRECTLY RESPONSIBLE FOR THE OFFENCE It can be ascertained as the crime of smuggling by the entity if the following features are met: (1) the crime of smuggling is committed in the name of the entity, that is, it is decided on by the entity through collective discussion, or is decided on and consented by the entity's responsible persons or other authorized persons; (2) the crime is committed on the condition that illegitimate benefits are sought for the entity or most of the illegal proceeds are owned by entity. In accordance with Article 2 of the "Interpretation of the Supreme People's Court on the Relevant Issues concerning the Specific Application of Law for Trying Cases of the Crimes Committed by Entities", where a company, enterprise or public institution established by an individual for committing illegal and criminal activities commits a crime, or an individual establishes a company, enterprise or public institution to commit crimes as main activities, the entity shall not be deemed to have committed a crime, nor be punished for it. Whether an entity commits crimes as its main activities shall be ascertained upon comprehensive consideration in light of factors such as the number of times, frequency and duration for the entity to commit the smuggling acts, and the situation of the entity's lawful operation. According to the different roles played by the persons of the entity in the crime of smuggling committed by the entity, one or several persons may be determined as the persons who are directly in charge or the other persons who are directly responsible for the offence. For a person dispatched by the leader of the entity to actively participate in committing the crime of smuggling, if his act plays an important role in the major link of the crime, he may be ascertained as a person who is directly responsible for the offence in the crime committed by the entity. XIX. HOW TO INVESTIGATE THE CRIMINAL LIABILITIES IN THE EVENT OF DIVISION, MERGER OR OTHER ASSET RESTRUCTURING AFTER AN ENTITY HAS COMMITTED THE CRIME OF SMUGGLING OR UNDER THE CIRCUMSTANCES THAT THE ENTITY IS CANCELLED, DECLARED BANKRUPT, ETC. IN ACCORDANCE WITH THE LAW In the event of division, merger or other asset restructuring, with an entity after it has committed the crime of smuggling, once there exists another entity that succeeds the original entity's rights and obligations, the entity shall be investigated for criminal liabilities for the crime of smuggling. If, after the smuggling entity is in the event of division, merger or other asset restructuring, the name of the original entity is changed, the original entity (name) shall still be considered the prosecuted entity. The legal representative or responsible person of the entity that succeeds the original entity's rights and obligations shall be the litigation representative. If an entity that has committed the crime of smuggling is in the event of division, merger or other asset restructuring, or is cancelled, declared bankrupt, in accordance with the law, no matter whether the entity succeeding the original entity's rights and obligations exists, the persons who are directly in charge and the other persons who are directly responsible for the offence in the original entity shall be investigated for criminal liabilities. Where the people's court imposes fine upon the original smuggling entity, it shall regard the entity that succeeds the original entity's rights and obligations as the party subject to execution. If the fine exceeds the properties succeeded by the new entity, it may be deducted in the execution. XX. DEALING WITH THE CASES ON JOINTLY SMUGGLING COMMON GOODS OR ARTICLES BY THE ENTITY AND THE INDIVIDUAL Where an entity and an individual (excluding the persons who are directly in charge and the other persons who are directly responsible for the offence in the entity) jointly smuggle, both the entity and the individual shall be liable for the amount of evaded or dodged duties payable due to their joint smuggling. Where an entity and an individual jointly smuggle and evade or dodge duties payable to the amount of not less than 50,000 Yuan but more than 250,000 Yuan, the case shall be dealt with in light of the roles the entity and the individual play as well as the different circumstances. If the entity plays a principal role, neither the entity nor the individual shall be investigated for criminal liabilities; instead, both of them shall be imposed with administrative punishment by the customs. While if the individual plays a principal role, the individual shall be investigated for criminal liabilities in accordance with the Criminal Law and the relevant provisions, and the entity shall be imposed with administrative punishment by the customs. If it is unable to ascertain whether the entity or individual plays a principal role, the individual and the entity shall be punished separately under the standard for the crime committed by the individual and that for the crime committed by the entity. Where an entity and individual jointly smuggle and evade or dodge duties payable to the amount of more than 250,000 Yuan, and it can be distinguished who is the principal criminal and who is the accomplice, the accomplice shall be given a lighter or mitigated punishment or be exempted from punishment in accordance with the relevant provisions in the Criminal Law on principal criminal and accomplice. XXI. ASCERTAINMENT OF VOLUNTARY SURRENDER IN CASES OF THE CRIME OF SMUGGLING BY THE ENTITY In cases of the crime of smuggling by the entity, if the entity collectively decides on voluntary surrender, or the persons who are directly in charge of the entity voluntarily surrenders, it shall be ascertained as voluntary surrender by the entity. After the ascertainment of voluntary surrender by the entity, if other persons in charge of the entity and other persons who are directly responsible for the offence in the entity truthfully confess the major criminal facts, they may be deemed to voluntarily surrender, while the persons who refuse to confess their major criminal facts or evade legal investigation shall not be regarded as voluntary surrender. XXII. HOW TO IMPOSE CRIMINAL FINE UPON CASES OF THE CRIME OF JOINT SMUGGLING When trying cases of the crime of joint smuggling, the people's court shall impose fines upon the joint criminals with the total amount at one time or more but five times or less of the amount of evaded or dodged duties payable in the joint smuggling. XXIII. DISPOSING OF THE SMUGGLED GOODS OR ARTICLES, ILLEGAL PROCEEDS FROM SMUGGLING AND INSTRUMENTS FOR THE CRIME OF SMUGGLING The investigation organ for crimes of smuggling shall, in the process of handling the cases of the crime of smuggling, timely recover the smuggled goods or articles, the illegal proceeds from smuggling and the instruments owned by the criminals of smuggling, which it has found, and shall distrain and freeze them in accordance with the law. When the case is transferred for examination before prosecution, the list of the documents on the distrained articles, the certificates on the frozen deposits and other materials shall be transferred along with the case. For the distrained dangerous articles or the live, perishable, easily unusable or easily depreciable goods or articles which are not suitable to be preserved for long, if they have been sold off or auctioned ahead of time, the list on the sold-off or auctioned articles and the photos or video tape materials of the original articles shall be transferred along with the case. The people's procuratorate shall, when initiating the public prosecution, transfer the list on the above said distrained articles and the certificates on the frozen deposits along with the list on the sold-off or auctioned articles. The people's court shall, when adjudicating the case on crime of smuggling, examine and confirm the money and articles stated in the lists and certificates in the case, and rule in accordance with the law to recover and confiscate them; the customs shall dispose of the articles in accordance with the judgment of the people's court and the relevant provisions in the Customs Law, and turn in them to the central treasury. XXIV. RECOVERING THE ILLEGAL PROCEEDS FROM SMUGGLING IN THE EVENT THAT THE SMUGGLED GOODS OR ARTICLES ARE UNABLE OR INCONVENIENT TO BE DISTRAINED In the cases on the crime of smuggling common goods or articles, if the smuggled goods or articles flow into the domestic market or have been put into use, and therefore are unable or inconvenient to be distrained, the illegal proceeds shall be ascertained upon the duty-paying value in import and export of the smuggled goods or articles, and shall also be recovered. If the actual sale price of the smuggled goods or articles is higher than the duty-paying value in import and export, the illegal proceeds shall be ascertained upon the actual sale price, and shall also be recovered. |
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