Illegal trade often manifests itself in the form of exchanging goods without declaration, making false declarations, using forged documents, hiding goods without valid documents, evading the control of officials and border guards to gain illicit profits. Those are acts that are defined as smuggling, such as: cross-border trade or from the free trade zone to the inland or vice versa including smuggled goods, Vietnamese currency, foreign currency, rare metals, and gemstones.
According to Article 188, Chapter XVIII of the Vietnam Criminal Code 2015, the crime of smuggling is as follows:
“1. Any person who conducts deals in the following goods across the border or between a free trade zone and the domestic market against the law shall be liable to a fine of from VND 50,000,000 to VND 300,000,000 or face a penalty of 06 - 36 months' imprisonment:
a) Goods, Vietnamese currency, foreign currencies, rare metals, gemstones assessed at from VND 100,000,000 to under VND 300,000,000 or under VND 100,000,000 but the offender previously incurred a civil penalty for the same offense or any of the offenses specified in Article 189, 190, 191, 192, 193, 194, 195, 196 and 200 hereof, or the offender has a previous conviction for one of the aforementioned offenses which have not been expunged, except for the case specified in Article 248, 249, 250, 251, 252, 253, 254, 304, 305, 306, 309 and 311 hereof;
b) Relics, antiques, or items of historical or cultural value.”
To determine an offense of smuggling, it is necessary to consider all the elements constituting the crime as follows:
Firstly, the object: The crime of smuggling infringes on the state economic management of export and import.
Affected objects: goods, Vietnamese currency, foreign currencies, rare metals, gemstones.
Goods identified in the crime of Smuggling are goods with common features, if the smuggling act involves the subject of goods being military weapons or drugs, it will not fall under the Crime of Smuggling but constitute the corresponding Crimes in chapters on military weapons, drugs, etc.
Secondly, the objective side of crime:
(i) Acts: There is an act of illegally trading from abroad into Vietnam or from Vietnam to abroad the following subjects: Goods; Vietnam Dong, foreign currencies (such as USD, Yen...); Precious metals, gemstones (gold, silver, diamond...); Items belonging to historical and cultural relics.
The time to complete the crime of Smuggling is counted from the time of illegally bringing goods and money across the border into Vietnam.
(ii) Property value: For goods, Vietnamese currency, foreign currency, precious metals, and gems, the value must be from VND 100,000,000 or more. In case of less than VND 100,000,000, it must be in the case of having been administratively sanctioned for smuggling or illegal objects relate to relics, antiques, etc.
Thirdly, the subjective side of crime: Errors are determined as direct intentional errors, the offenders are aware that their acts are infringing upon activities of state economic management of export and import but still carry out.
Finally, the subject: Offenders who are pledged to the age for penal liability and have penal liability capacity.
Therefore, the crime of Smuggling has included the act of tax evasion, how do distinguish the crime of Tax evasion under Article 200 and the crime of Smuggling under Article 188 of the Vietnam Code 2015?
It is necessary to rely on the following objective conditions to distinguish the above two crimes:
+ For the crime of smuggling: the object is infringing upon the state's economic management activities with imported and exported goods. That is, with the act of smuggling, the state does not collect taxes and does not know the number of goods brought into Vietnam's territory.
+ For the crime of tax evasion: the state still knows the number of goods entering the Vietnamese territory, but the offender uses different tricks to make false declarations about the composition and physical properties to declare a tax amount lower than the actual tax amount payable. Then, this act causes a loss of state budget revenue.
Therefore, to determine the crime of smuggling, we need to consider the elements constituting the crime in terms of the object, the subject, the objective side, the subjective side as well as paid special attention to the acts and objects being violated to distinguish clearly from the crime of tax evasion under Article 200 of the Vietnam Criminal Code 2015.
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Above are the basic contents of the “Smuggling” based on legal regulations at the time of writing this article. If you need advice on the above issue or are interested in other legal services, please contact LS Law Firm immediately via Email: lslawfirm2014@gmail.com for timely support.
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