Nowadays tariff liberalization in world trade and development of foreign economic relations force states to extremely rare use criminal legal means to counteract foreign economic crimes. According to the International Trade Center data, the volume of international trade in goods from 2016 to 2019 increased by 15% and amounted to 19 trillion US dollars .
The article examines the differences in approaches to the criminalization of acts related to smuggling and characteristics of the legal norms statutory concept establishing liability for smuggling on examples of the legal systems of selected countries.
The object of comparative legal analysis is countries with the Romano-Germanic legal systems from the legislation of economically developed countries as Germany, France, Switzerland, the Netherlands, the Russian Federation, China and Japan, to the less developed states of Latin America and the Middle East.
Key Words: Roman-Germanic legal system, Smuggling, the German Criminal Code, The Swiss Criminal Code, the Chinese Criminal Code, The Iranian Criminal Code, The Russian Criminal Code, the Argentine Criminal Code, the Danish Criminal Code.
Сравнительно-правовой анализ уголовной ответственности за контрабанду в странах романо-германской правовой системы
В настоящее время тарифное послабление и развитие внешнеэкономических связей в мировой торговле вынуждают государства крайне редко прибегать к уголовно-правовым средствам противодействия внешнеэкономическим преступлениям. По данным Международного торгового центра, объем международной торговли товарами с 2016 по 2019 год увеличился на 15% и составил 19 трлн долларов США .
В статье рассматриваются различия в подходах к криминализации действий, связанных с контрабандой, и характеристика нормативно-правовой концепции, устанавливающей ответственность за контрабанду, на примерах правовых систем отдельных стран.
Объектом сравнительно-правового анализа являются страны с романо-германскими правовыми системами, начиная с законодательства экономически развитых стран, таких как Германия, Франция, Швейцария, Нидерланды, Российская Федерация, Китай и Япония, и заканчивая менее развитыми государствами Латинской Америки и Среднего Востока.
Ключевые слова: Романо-германская правовая система, контрабанда, уголовный кодекс Германии, уголовный кодекс Швейцарии, уголовный кодекс Китая, уголовный кодекс Ирана, уголовный кодекс РФ, уголовный кодекс Аргентины, уголовный кодекс Дании.
Countries of the Romano-Germanic legal family that provide for a minimum criminal liability for the smuggling of certain goods
The German Criminal Code does not use the concept of «smuggling» as such. However a number of articles of the German Criminal Code establish responsibility for the illegal import and export of certain goods.
So, in accordance with Article 275 of the German Criminal Code forgery of official identifications and sale, storage, import or export of the forged service documents as well as matrices, paper or forms for its manufacturing is punishable by imprisonment for up to two years or a fine.
A separate liability is envisaged for the smuggling of combustible nuclear and radioactive substances under Article 328 of the German Criminal Code which is imprisonment for up to five years or a fine.
It should be noted that in accordance with German legislation almost all crimes that infringe on the sphere of entrepreneurship are considered by German lawmakers as criminal infraction. That means that the commission of such an act will result in the minimum punishment that is imprisonment for less than one year or even less severe types of criminal punishment. The exception is made for counterfeiting and falsification of payment documents.
Therefore, German law establishes liability for illegal movement across the border of only a limited list of goods. At the same time, liability is established for the illegal import or export of the goods, the circulation of which is limited or completely prohibited.
The Swiss Criminal Code also does not use the concept of «smuggling», however, a number of its articles envisage liability for the illegal import of certain goods.
The Swiss legislator rarely uses criminal legal means in countering economic offenses, establishing criminal liability for smuggling of a limited list of goods. In particular it concerns animal feed or feedstuffs that are harmful to the health of animals (Article 236 of the Swiss Criminal Code), sound recordings (Article 135 of the Swiss Criminal Code), photographs, images, other objects or displays that are not subject to protection due to their insignificant cultural or scientific values (Article 144b of the Swiss Criminal Code) or obtrusively depict cruelty towards people or animals .
As for the countries such as Austria, Belgium and Norway, there is no criminal liability for the smuggling. .
Countries of the Romano-Germanic legal family that provide for strict criminal liability for the smuggling of certain goods
In some states criminal law measures against smuggling of restricted or prohibited in circulation goods are of priority importance. Thus, the Japanese Criminal Code provides for criminal liability in case of illegal transportation across the border of opium or devices for smoking opium (Articles 136-138) .
In accordance with the South Korean Criminal Code a person guilty of smuggling explosives during a war or a military incident should be prosecuted (Article 121). In addition, likewise in Japan in South Korea criminal penalties are provided for import of opium, morphine or their derivatives (Article 198).
Article 199 establishes a full ban on import of opium smoking devices. Part 4 of Article 207 of the South Korean Criminal Code regulates criminal liability for import or export of currency for the purpose of marketing. Articles 211, 217, 222 of the South Korean Criminal Code prohibits import or export of counterfeit banknotes, securities, as well as government bonds, government and postal stamps and seals issued in the Republic of Korea or other foreign countries with the intention to sell it .
Several types of smuggling are criminalized in Turkish criminal law. In particular, criminal liability is established for the smuggling of fraudulent or counterfeit money, national gold jewelry (Article 316 of the Turkish Criminal Code) as well as for import of counterfeit and fraudulent payment signs (securities, coupons, stamps) (Article 322 of the Turkish Criminal Code). Article 426 provides for criminal liability for the smuggling of obscene objects.
The most strict responsibility is provided for drug smuggling. In accordance with part 1 of Article 403 of the Turkish Criminal Code a imprisonment for a period from 10 up to 20 years and a heavy fine of 500 thousand lire for each gram of the drug are provided for import of narcotic substance into the territory of the Republic of Turkey without a permit or violating the conditions of the permit. At the same time for export of the named goods part 2 of the same article provides imprisonment for a period from 6 up to 12 years and a heavy fine of 50 thousand lire for each gram of the drug. Under part 3 import in as well as export from Turkey of narcotic substances after its processing is punishable by imprisonment for a period from 10 up to 20 years and a heavy fine of 500 thousand lire for each gram of a drug .
In countries such as Afghanistan, China, Egypt, India, Iran, the death penalty is provided for drug smuggling.
The Chinese Criminal Code provides criminal liability for smuggling of various goods, for example, weapons, ammunition, nuclear materials or counterfeit currency (part 1 of Article 151 of the Chinese Criminal Code), cultural values which export is prohibited by the People’s Republic of China, gold, silver and other precious metals, as well as valuable animals and its products import of which are prohibited by the the People’s Republic of China (part 2 of Article 151). The smuggling of the named goods under aggravating circumstances are punished with indefinite imprisonment or the death penalty as well as confiscation of property.
In accordance with part 3 of Article 151 of the Chinese Criminal Code criminal liability is also provided for smuggling of unique plants (for example, ginseng) and its products export of which are prohibited by the People’s Republic of China. These crimes are punishable by imprisonment for up to 5 years and / or a fine as the most strict criminal liability. However if there are aggravating circumstances the imprisonment could exceed a term of 5 years not mentioning a fine.
In addition to the crimes listed above a separate criminal liability is also provided for the smuggling of pornographic products for the purpose of making profit or distribution (Article 152 of the Chinese Criminal Code) and smuggling of goods and objects with a purpose of tax evasion (Article 153 of the Chinese Criminal Code).
The Chinese Criminal Code provides for liability for the illegal acquisition of goods prohibited by the state for import into the the territory of the People’s Republic of China directly from a smuggler (Article 155 of the Chinese Criminal Code) as well as for an armed cover for smuggling (Article 157 of the Chinese Criminal Code) .
The Chinese Government pays great attention to the problem of drug trafficking which is reflected in the legislation. Article 346 of the Chinese Criminal Code regulates criminal prosecution for any drug smuggling. The severity of the punishment depends on the amount of substances transported. The most strict sanctions that are represented by the imprisonment for a term of 15 years, indefinite imprisonment or the death penalty. These liability is applicable if drug smuggling in large quantities is committed; if a person leaded a group dealing with drugs smuggling, sale, transportation and manufacture; if drug smuggling, sale, transportation and manufacture was armed covered; if a violent resistance to search, detention and arrest under aggravated circumstances took place; if a person participated in organized international drug trade .
French criminal law provides criminal liability for drug smuggling with 10 years of imprisonment and a fine. If there are aggravated circumstances of the commission of an act by an organized gang it is punishable by 30 years of imprisonment and a fine (Articles 222-36 of the French Criminal Code).
The smuggling of explosives is criminalized in accordance with Article 421-1 of the French Criminal Code. That crime in some cases can be attributed to acts of terrorism and if it is considered as such the punishment significantly increases .
Features of the criminal law regulation of smuggling in the legislation of individual countries
In the law systems of individual countries criminal liability for smuggling is established not in the criminal code, but in separate laws. For example, in Iraq, the 1984 Customs Law contains a number of provisions related to smuggling. It establishes different criminal liability depending on the severity of the act (criminal infraction or crime) .
India also has criminalized smuggling of narcotic and psychotropic substances by the Substances and Cosmetics Act 1940 and the Narcotic Drugs and Psychotropic Substances Act 1985 .
Another feature that can be identified as a result of this analysis is a difference in approaches to the criminalization of acts related to smuggling. Some states consider smuggling through an economic effect, others acknowledge smuggling in cases when goods that are exempted or limited in its circulation are involved.
The Swedish Criminal Code focuses on countering economic smuggling. In Article 1 in Chapter 11, Part 2 of the Swedish Criminal Code provides for criminal liability for a person declared bankrupt who smuggle property from the country in order to avoid bankruptcy proceedings .
The Argentine Criminal Code provides for the criminal liability of “the one who forged money that is legally circulating in the Argentine Republic, as well as the one who imported, sold or put into circulation this kind of counterfeit money” (Article 282 of the Argentine Criminal Code). In accordance with Article 283 of the Argentine Criminal Code it is prohibited to reduce weight or any change as well as import, sale or introduction into circulation coins that are in legal circulation.
Under Article 169 of the Danish Criminal Code any person who imports counterfeit money or securities should be prosecuted. Section 170 of the Danish Criminal Code criminalizes import of a bearer bill as legal tender for narrow or wide circulation or one that could be used in a similar manner. This provision does not apply to foreign banknotes.
The Iranian Criminal Code provides for imprisonment for a term from 1 up to 10 years for import into the territory of the Islamic Republic of Iran of counterfeit national and foreign golden and silver coins (Article 518 of the Iranian Criminal Code). For counterfeit of national and foreign coins minted not from precious metals an imprisonment for a term from 1 up to 3 years is envisaged (Article 520 of the Iranian Criminal Code) .
Examples of legislation providing for criminal liability for smuggling of goods that are exempted or limited in its circulation could be found in the legal systems in Switzerland, Germany, Japan, Korea, Turkey, etc. and described above.
Until 2012 the Russian Federation belonged to the countries that establish responsibility for economic smuggling as well as smuggling of goods that are exempted or limited in its circulation. However after the exclusion of economic smuggling from the Russian Criminal Code, the systematic approach was destroyed and fragmentary criminal norms were created instead.
The introduction of a criminal law prohibition by separating certain acts into separate norms leads to the growth of domestic criminal law which is not always justified. For example, Article 228 of the Russian Criminal Code provides for criminal liability for illegal acquisition, storage, transportation, manufacture, processing of narcotic drugs and psychotropic substances. At the same time Article 229.1 of the Russian Criminal Code provides for the same criminal liability for the smuggling of the same items. There are other examples as well.
In order to improve Russian criminal legislation illegal movement across the border (as a criminal act) could be added to norms regulating criminal liability for the manufacturing, sale, storage, movement (and other) of the relevant items of a crime . Another possible solution to the problem could also become separation of corpus delicti that applies to too diverse items.
For example, Article 226.1 of the Russian Criminal Code regulates criminal liability for the smuggling of both radioactive substances and cultural property. Such construction of a legal norm reduces the effectiveness of protecting public relations, rights and freedoms that are harmed as a result of a crime, and it also creates difficulties in law enforcement.
Consequently, in Russian legislation this act could be classified as an environmental crime. The expediency of focusing on environmental protection is due to the scale of crime in the relevant area as well as the need to address issues related to ensuring environmental safety . At the same time, the smuggling of cultural property (the object of which the legislator sees public safety) primarily infringe on the interests of the state regarding the ownership and disposal of cultural property and the preservation of the cultural heritage of the peoples of the Russian Federation.
Thus, the process of decriminalization of crimes in the field of foreign economic activity is observed mainly in European countries and only in relation to goods unrestricted in circulation.
Taking into account the analysis of the provisions of foreign legislation presented above it can be noted that the objects (and items) of acts related to smuggling differ as well as the methods of criminal law protection also differ. It is difficult to identify common features even in the states of one legal family (for example, Romano-Germanic). Some researchers adhere to a similar point of view noting that the choice of the model of liability for smuggling is not influenced by either the geographic principle or the attribution of the state to a certain legal family.
1. The Criminal Code of the Federal Republic of Germany, available at: https://constitutions.ru/?p=24969 (accessed 5 March 2021).
2. The Criminal Code of Switzerland (official text), available at: https://www.admin.ch/ch/e/rs/c311_0.html . (accessed 6 March 2021).
3. The Criminal Code of the Netherlands, available at: http://law.edu.ru/norm/norm.asp?normID=1242430&subID=100100457,100100458,100100510,100101139 (accessed 10 March 2021).
4. The Criminal Code of Sweden. available at: http://www.sweden4rus.nu/rus/info/juridisk/ugolovnyj_kodeks_shvecii (accessed 10 March 2021).
5. The Criminal Code of Japan, available at: https://constitutions.ru/?p=407&attempt=1 (accessed 5 March 2021).
6. Criminal Code of the Republic of Korea, available at: https://books.google.ru/books?id=qIJkCgAAQBAJ&pg=PT81&lpg=PT81&dq (accessed 5 March 2021).
7. The Criminal Code of the PRC, available at: https://constitutions.ru/?p=403 (accessed 5 March 2021).
8. Criminal Code of France, available at: https://constitutions.ru/?p=25017 (accessed 6 March 2021).
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Information about the author:
Kaminskiy Ilya, Consultant of Division of Access to Foreign Markets and Settlement of Trade DisputesEurasian Economic Commission.
Информация об авторе:
Каминский Илья Сергеевич, Заместитель начальника отдела доступа на внешние рынки и урегулирования торговых споров Департамента торговой политики. Евразийская экономическая комиссия.