The legal principles involved in the criminal criminal case caused by cross -provincial recruitment of workers

Basic case

A few days ago, the domestic media's attention in Tongren, Guizhou Tongren, who stole the Vietnamese (border) situation in Guizhou, entered the first -instance stage. According to media reports, before the incident of Jiang Moutao's incident, he served as a legal representative in Rongcheng, Weihai, Shandong. The company is a labor -intensive enterprise and requires a large number of recruitment. At the end of June 2020, Yang Mougui, the head of the company's production workshop, took the initiative to propose to Jiang Moutao that he could introduce a group of workers to work in the company. If you want to recruit these people, the company needs to pay the toll in advance. Due to the fact that the company had previously recruited foreign employees' prepaid tolls, Jiang Moutao arranged for the company's financial pre -paid to give Yang a tens of thousands of yuan. However, Yang Mougui was introduced by Burmese through the introduction of other people, and did not have legal entry procedures. It was discovered by Guizhou police on the way from Ruili, Yunnan to Rongcheng, Yunnan.

On August 30, 2020, Jiang Moutao was taken away from Shandong Rongcheng and criminally detained by the police of Guizhou Tao Miao Miao Autonomous County.

On September 7, 2021, the People's Court of the first instance made a criminal verdict, and Jiang Moutao committed the crime of transporting others to steal the country (border). According to the first trial judgment, the transportation of these Burmers related to Jiang Moutao occurred in China. In the trial, Jiang Motao believed that the transportation behaviors involved in the tolls they paid for the stolen border of the Burmese people had occurred in China. Essence The lawyer also defended it for him.

After the case appealed, on December 31, 2021, the Tongren Intermediate People's Court of Guizhou Province believed that some of the facts in the case were unclear and insufficient evidence.

Legal evaluation

The legal principles of crime, also known as the legalist of crime and punishment, are the excellent achievements of human civilization. The criminal code revised in March 1997, from the need to improve the criminal rule of law and protect human rights, it clearly stipulates the legal principles of criminal criminals and abolish the category push system, becoming an important symbol of the revision of criminal law and the development of my country's criminal law. Today, the basic meaning of the legal principles of criminal punishment is: what is crime, what crimes, what are the conditions for various crimes; what is punishment, what are the punishment, how to apply each crime, and various crimes, and various crimes How to wait for the specific quantitative schedule will be stipulated by the criminal law. There is no provisions for criminal laws as criminals and punishment.

From the perspective of this case, the court of first instance made Jiang Moutao's crime of transporting others to steal the country (border), sentenced to five years and six months in prison, and fined 30,000 yuan. So, how does it stipulate about the crime of transporting others to steal the country (border) from the principle of punishment? We must first clarify.

According to Article 321 of the Criminal Law of the People's Republic of China, the crime of transporting others to steal the country (border) is a behavior that violates the management regulations of the country (border) and illegally transports others to steal the country (border). Essence At the same time, the charges are strictly identified and punished. The objective elements of the constituent elements of the crime of stole the country (edge) of others are manifested as the object of infringing the crime is the state's management system for the state (edge) of the country. The behavior of the behavior is others other than himself. When the actor transports others to steal the country (edge), he must also steal the country (edge), that is, he must have an behavior of crossing or entering the border. Illegal refers to violation of management regulations on entry and exit (edge), such as the "People's Republic of China Foreigners Entry and Outbound Management Law". In terms of subjectively, this crime must be intentional, that is, knowing that others attempt to steal the country (border) are still determined to transport them. Failure cannot constitute costs.

Comprehensive news reports and related content of the first trial, and combined with the legal principles of criminal punishment, the author has the following thoughts on whether Jiang Moutao constitutes the crime of transporting others to steal the country (border):

1. Jiang Moutao subjectively, for the purpose of recruiting migrant workers for the company, recruited personnel in Yunnan Ruili in China to recruit workers in Shandong Rongcheng, that is, across provincial recruitment. Objectively, the toll is paid for these long -distance migrant workers, and it has no subjective intentional intentional behavior of the subjective intentional intentional intention of stealing the country (border), nor the objective behavior of other people to steal the country (border). As for whether the transported persons are Myanmar, and how they entered China across the border and arranged by whom, Jiang Moutao did not know. The first trial judgment also shows that the Burmese personnel transported by Jiang Moutao and others are Shandong from Yunnan to China in China. Therefore, there is no fact that Jiang Moutao "knows others attempts to steal the country (border) and still determine to transport it."

2. According to the facts found in the first trial, the Myanmar personnel involved in the case deliberately opened the border inspection station and secretly entered Ruili, Yunnan, China from Burma. Concentrated in the small woods. Jiang Motao never knew these people, and never had any contact with them, that is, he had not participated and implemented any active person to steal the country (edge).

3. Combined with this case, if Jiang Moutao knows the recruited workers, the behavior of paying the toll for cross -provincial recruitment is only illegal. According to Article 80, paragraph 3 of my country's Outbound Immigration Management Law: "If you illegally hire foreigners, a fine of 10,000 yuan per illegal employment, a total of not more than 100,000 yuan; The behavior of hiring foreign employees in a negligence should be handled by relevant departments. According to the level of the plot, the subjective fault of the perpetrator, etc., comprehensively measures whether it is measured and how to give administrative penalties. In summary, the transportation of the actor in this case is carried out in China, that is, from Ruili, Yunnan to Rongcheng, Shandong, there are no stolen and crossing the country (border). Behavioral characteristics. According to the legal principles of criminal punishment, the implementation of the act of transporting others to steal Vietnam (border) must be based on the premise of the act of stealing the country (border) in the presence of reality. The transporters in the country cannot participate in the crime in the way of "conspiracy beforehand" or "inheritance in the event", and the behavior of "transporting others to steal the country (border)" is unable to talk about it. Develop the conclusion of conviction and the theory of criminal law.

The author believes that Jiang Mantao actually involves the use of transportation in China to transport foreigners or hiring illegal people who have already entered the country in China or hire illegal abroad, but these two actions have not been convicted in criminal law. The transportation behavior must be strictly defined according to objective facts. Article 3 of the Criminal Law revised in 1997 stipulates: "If the law explicitly stipulates that criminal acts shall be convicted in accordance with the law; if the law does not explicitly stipulates criminal acts, it shall not be convicted." This provision is generally referred to as " Basic requirements of the principle of punishment ". The judicial officer must judge whether a person's crime and what kind of punishment he is judged must follow the legal principles of criminal punishment and the clarification of the law in accordance with the laws. Specifically, only if the law stipulates a certain behavior as a crime can the law be convicted of this behavior. To determine whether a certain behavior constitutes a crime, if the conditions and standards strictly stipulated by the law must be strictly in accordance with the conditions and requirements stipulated by the law, it cannot be explained and speculated as guilty. What crimes are required by the law, what crimes are determined? The law does not have the name of the law, and the law does not have a penalty. (Author Li Yang is the executive director of Beijing Jinglin Law Office, former associate professor and graduate instructor of the School of Law School of the Central University for Nationalities)

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