With the introduction of amendments to the text of the Criminal Code and the decriminalization of many crimes, it has become difficult to distinguish many offenses from attacks on interests protected by criminal law. This applies to such seemingly “frivolous” crimes as insulting, and to much more significant acts. Smuggling is also decriminalized. Is it now - a violation of the criminal law, "administrative" or something else? It is worthwhile to understand the issue in detail.
Objective side
Imagine that smuggling is still a crime that must be analyzed under criminal law. What for? The fact is that only the theory of criminal law gives interested researchers a true idea of each crime, even if over time these acts disappear from the pages of the Criminal Code.
So, earlier it was believed that smuggling is a punishable act committed against the interests of the external economy of Russia. It is described in article 188. The foreign economic system acts as a direct object, namely, any rights of participants in foreign economic activity.
Subject - all types of goods.
For the definition of the concept of “goods”, one should turn to customs legislation, according to which it is obvious that the subject of the analyzed act is movable property in all its diversity (including money, securities, any kind of energy, vehicles).
The second part lists special groups of crime items: drugs, radioactive or explosive, as well as toxic substances, weapons, ammunition, military equipment, cultural heritage items, and natural raw materials of strategic importance. Theoretically, on the basis of the subject of smuggling is a crime, even if at present it is not considered such.
The objective side of the analyzed act is the transportation of the above items through the customs border of Russia. An offense consists in the absence of declaration or inaccurate declaration of transported goods or in another guilty act related to non-compliance with customs regulations.
Since smuggling is an act characterized by a rather complicated composition, it is necessary to understand in more detail the features of its subject.
Subject of offense
The meaning of some of the terms proposed in the article should be clarified. So, poisonous substances are any highly toxic chemicals that are not chemical weapons, but have a strong enough effect to negatively affect the respiratory or nervous system.
Explosives are chemicals that are capable of rapid chemical reactions under the influence of a certain impulse, which form a gas as a result of such reactions and generate heat (for example, dynamite).
Strategic natural resources include resources such as natural gas, oil and its processed products, as well as some seafood (fish roe, crayfish and crustaceans).
Smuggling also includes materials and equipment used in the manufacture of weapons, including weapons of mass destruction. In addition to directly raw materials and equipment, this group includes technologies that are potentially or actually used for the above purposes.
Connection with customs legislation
Transportation and movement involve both the import and export of items. Goods in the form of energy can be transported, including via power lines.
Smuggling is a foreign economic violation, therefore, to understand its essence, it is necessary to clearly imagine the customs border of the Russian Federation. This is not only land and sea, but also the airspace above the waters and land territory, as well as any structures located in the exclusive economic zone on the territory of water bodies.
A free customs zone is not considered a territory belonging to Russia, but in some cases it can be considered in this context.
Structure
The composition of the violation is formal, since it is actually considered completed at the time of the movement of objects across the customs border. If the attacker attempted to export, rather than import goods, then the end of the act means the moment of filing a tax return to the authorized bodies or other action indicating the person’s desire or intention to move items across the customs border.
Subjective side
By the subjective side of this offense is always implied the presence of direct intent. The attacker is fully aware of the illegality of his actions.
The subject must be sane and reach the age of sixteen at the time of the illegal activity.
In the legislation on administrative offenses
So, to which code does smuggling belong: is it the Criminal Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation? The question cannot be considered unambiguously. The origins of the violation lie in the criminal law - this fact cannot be changed even by the Federal Law, which excluded the article from the Criminal Code. However, it is now impossible to consider smuggling entirely from the point of view of criminal law - only from the point of view of its history and development prospects. Currently, smuggling is an administrative offense, which is reflected in Article 16.1 of the Code of Administrative Offenses.