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北京首例以外国公司驻北京代表处名义获得进口机动车指标走私旧机动车犯罪案件,已由北京市第二中级人民法院审结。由于此案犯罪过程横跨《中华人民共和国刑法》和《中华人民共和国刑法修正案(七)》,到底应如何定罪受到广泛关注。据了解,法院最终改变了检察院公诉的走私罪名,而是以非法经营罪判处被告人王卫东有期徒刑三年。本案在犯罪行为如何认定的问题上出现不同观点,涉及到刑法溯及力和牵连犯等理论问题。由于受到取证等客观因素的制约,不可能每个案件都能符合理想的定罪量刑条件,这就要求刑事法官具备扎实的法学理论功底,在现有证据的情况下,多角度地对犯罪行为进行分析,灵活、正确适用法律。合议庭对此案的把握,为有效解决此类案件在法律适用上遇到的问题提供了借鉴。
Beijing’s first criminal case of smuggling old motor vehicles with imported motor vehicles in the name of a Beijing representative office of a foreign company has been concluded by Beijing No. 2 Intermediate People’s Court. Because of the criminal process across the “People’s Republic of China Criminal Law” and “Criminal Law Amendment (VII)”, in the end how to be convicted by widespread concern. It is understood that the court eventually changed the prosecutor’s prosecution of smuggling charges, but to sentence the defendant Wang Weidong illegal operation for three years in prison. There are different views on how to determine the criminal act in this case, which involves the theoretical issues such as the retroactivity of the criminal law and implicated criminals. Due to the restriction of objective factors such as forensics, it is impossible for each case to meet the ideal condition of conviction and sentencing, which requires criminal judges to have a solid theoretical foundation of jurisprudence and, in the case of existing evidence, to conduct criminal activities in a multi-angle manner Analyze, flexibly and correctly apply the law. The collegial panel’s grasping of the case provides a reference for effectively solving the problems encountered in the application of such laws in such cases.