涉税走私违法所得问题研究

A Study on Illegal Income from Tax-Related Smuggling

违法所得可以区分为广义违法所得和狭义违法所得、阶段性违法所得和终局性违法所得。涉税走私中,应区分不同功能来理解和把握违法所得的范围。打击洗钱犯罪旨在及时切断上游犯罪资金链,尽量剥夺再犯的可能性,这就需要适度放宽违法所得的范围,对上游犯罪的涉税走私采纳广义违法所得概念更合理,应侧重于从走私过程来把握阶段性违法所得。没收追缴则旨在剥夺行为人从违法犯罪中实际获得的利益,如果一律按走私货物完税价格认定违法所得,不但重复评价实际获利,也会导致罪责刑不相适应,不符合司法实际和大众观念。对此,应从结果角度来把握终局性违法所得,区分不同情形合理确定没收追缴违法所得的范围。

Illegal income can be divided into generalized illegal income and narrow illegal income,as well as phased illegal income and final illegal income.In tax-related smuggling,different functions should be distinguished to understand and grasp the scope of illegal income.The purpose of combating money laundering crime is to cut off the capital chain of upstream crime in a timely manner and try to deprive it of the possibility of recidivism.This requires a moderate relaxation of the scope of illegal income,which is more reasonable to adopt the concept of generalized illegal income for tax-related smuggling of upstream crime and should focus on the process of smuggling to grasp the phased illegal income.The purpose of confiscating and recovering is to deprive the actor of the actual benefits obtained from the crime.If the illegal income is determined and recovered according to the dutiable value of the smuggled goods,it will not only repeatedly evaluate the actual benefits obtained from the crime,but also lead to the incompatibility between responsibility,punishment and crime,which is not in line with judicial reality and public view.In this regard,the final illegal income should be grasped from the perspective of result,and the scope of confiscating and recovering illegal income should be reasonably determined according to different situations.