骗取出入境证件行为的刑法定性

A Criminal Qualitative Research on the Act of Fraudulently Obtaining Entry-exit Documents

对于以提供伪假证明材料等方式骗取出入境证件行为的刑法定性,存在行政法中的出境入境证件与刑法中的出入境证件混同、对出售出入境证件罪中出售行为的认定争议较大等诸多问题。《出境入境管理法》规定的外国人停留居留证件既不属于司法解释例示的出入境证件,也不可归为司法解释所规定的“其他出入境时需要查验的资料”,故不属于刑法意义上的“出入境证件”。对于骗得出入境证件后将该证件出售的行为,应当将其认定为出售出入境证件罪;对于有偿为他人骗取出境证件的行为,可以将其认定为骗取出境证件罪或骗取出境证件的行政违法行为;对于有偿为他人骗取入境证件的行为,只能认定为骗取入境证件的行政违法行为。骗取入境证件行为与骗取出境证件行为的规制必要性相当,应在刑事立法层面将“骗取出境证件罪”调整为“骗取出入境证件罪”,从而进一步完善对出入境证件的刑法保护。

Regarding the criminal nature of fraudulently obtaining entry-exit documents by providing forged certification materials,etc.,there exist many issues,such as a confusion between entry-exit documents in administrative law and entry-exit documents in criminal law,and considerable controversy over the identification of selling behavior in the crime of selling entry-exit documents,etc.The stay and residence documents for foreigners stipulated in the Exit-Entry Administration Law are neither the entry-exit documents exemplified in the judicial interpretation,nor can they be classified as"other information that needs to be inspected when entering or exiting"stipulated in the judicial interpretation,so they do not belong to"entry-exit documents"in criminal law.The act of defrauding others to obtain entry-exit documents and then selling the documents shall be deemed as the crime of selling entry-exit documents;the act of defrauding others to obtain exit documents for a fee may be deemed as the crime of defrauding others to obtain exit documents or the illegal act of defrauding others to obtain exit documents.The behavior of defrauding others to obtain entry documents for a fee can only be deemed as an illegal act of defrauding entry documents.The regulation of the act of defrauding entry documents is as necessary as that of the act of defrauding exit documents.The"crime of defrauding exit documents"should be adjusted to the"crime of defrauding entry-exit documents"at the level of criminal legislation,so as to further improve the criminal law protection of entry and exit documents.