浅析进口废物案件的定性与处理——以两起典型案件为例

Determination and Handling of the Cases of Imported Waste:Based on Two Typical Cases

废物进口案件可分别构成刑事和行政案件。针对复杂案件罪与非罪的界定,对于因主观故意方面证据不足的案件,建议将是否构成犯罪提交司法机关认定是穗妥之举。进口废物违规行为行政处罚的法律适用,目前我国现行环保法律、法规关于行政处罚幅度的规定跨度较大,具有较大的自由裁量空间。此类行政案件建议应对当事人在同一案件中的不同行为要厘清责任,应了解清楚是认定为数个独立行为分别处罚,还是认定为连续行为合并处罚,并在综合考虑的基础上,确定处罚比例。对冒用他人废物进口许可证,并冒用其他企业名义向海关申报进口属于国家限制进口类废物的,建议认定为属于逃避海关监管的走私行为,达到刑法起刑点的符合走私废物罪的构成特征;关于对未经许可擅自进口自动许可类可用作原料的固体废物的,如当事人进口属于自动进口许可货物申报不实或未申报,影响国家许可证件管理的,已构成《海关行政处罚实施条例》第15条第3项规定的申报不实行为;对不符合国家环控标准(夹杂物超标)的固体废物如何处理问题,如当事人已经履行了相关法律义务,主观并无过错,海关不应再对当事人进行处罚,由监管部门予以退运,不再移交缉私部门处理。对进口废物刑事、行政案件的转化要及时启动,缉私民警在办案过程中要探索和践行'一警双权,一案到底'。

The cases of waste importation can respectively constitute the criminal cases and the administrative cases.For the definition of crime and noncrime of the complicated cases,it is safe to refer whether the case without adequate evidence of subjective intention has constituted a crime to the judicial authorities for determination.For the application of laws on administrative penalty for violation with respect to waste importation,currently,Chinese environmental laws and regulations have a relatively large span in terms of regulations on administrative penalty extent and accordingly a large discretion space.For such type of administrative cases,it is advised to clarify the responsibilities for different behaviors of the parties concerned in the same case and clearly know whether to determine it as several independent behaviors to impose respective punishments or to determine it as continuous behaviors to impose concurrent punishment,and finally to set the punishment proportion based on comprehensive consideration.The cases of fraudulently using others’waste import licenses and other enterprises’names to declare to the customs the state-limited waste importation are advised to be determined as the act of smuggling that evades the supervision and control by the customs and conforms to the characteristics of waste smuggling crime reaching the minimum standard for criminal prosecution;for the cases of importing without permission the automatically licensed solid waste that is able to serve as the raw materials,if the party concerned has made false declaration or no declaration of the imported automatically licensed goods,which has influenced the state administration of licenses,the case has constituted the act of false declaration as regulated in paragraph 3 under article 15 in Regulations of the People’s Republic of China on Implementing Customs Administrative Penalty;as to how to treat the solid waste not conforming to the national environmental standard(with the amount of foreign materials being out of gauge),if the party concerned has performed related legal obligations and is blameless subjectively,the customs should not impose punishment on it,and the supervision department should return the waste instead of transferring the case to the smuggling suppression department.The translation of criminal and administrative cases for waste importation should be timely started,and the suppressing policemen should explore and practice the tenet of'the policeman has the enforcement power of criminal and administrative rights and can trace the case to the end'in handling the cases.