“化整为零”式海外代购走私犯罪的认定及法律适用

Determination of and Legal Application in Smuggling Crime in“Fragmented”Overseas Shopping on Others' Behalf

当下走私犯罪的方式手段日新月异,如何依据刑法来把握新型走私犯罪的构成特征并正确适用刑罚已成为理论研究和司法实践中必须面对和解决的问题。"化整为零"式海外代购已成为近年来备受关注的适应国内消费者需求的一种商业服务形式,同时也进入了海关和司法机关的刑事司法评价视野,在审视这种行为时,需要通过刑法形式违法性与实质违法性进行深入的研讨,并进而从刑事违法性与社会危害性之高度对其适用走私普通货物、物品罪作出合理评价。

With ever changing means of trafficking, how to ascertain the features constituting new smuggling crimes in light of the criminal law and how to properly determine the criminal penalties have turned into the problems that we have to face and address in the theoretical research and judicial prac- tice. The ＂fragmented＂ overseas shopping on others＇ behalf, as a commercial form meeting the need of domestic consumers, has become a common concern in recent years and has also come into sight of the Customs administration and judicial agencies. This act should be approached from both formal and sub- stantive violation in accordance with the criminal law. The rulings of smuggling goods or articles should be properly determined at the level of criminal violation and social jeopardy.