my country's Criminal Law Article 4205 stipulates the crime of issuing a special value-added tax invoice. From the perspective of law and relevant judicial interpretations, there are three sentencing levels: 1. The tax amount is "small" (more than 50,000 yuan), and the sentence is sentenced to fixed-term imprisonment of not more than three years or detention, and a fine of not more than 200,000 yuan; 2. The tax amount is relatively large (more than 500,000 yuan), and a fine of not more than 50,000 yuan and not more than 500,000 yuan; 3. The tax amount is huge (more than 2.5 million yuan), and a fine of not more than 10 years or life imprisonment, and a fine of not more than 500,000 yuan and not more than 500,000 yuan or confiscation of property. The amount reflects to a certain extent the degree to which the false tax is infringed on legal interests. Therefore, the larger the amount of false taxes the perpetrator shall bear, the heavier the criminal liability. However, due to the existence of various sentencing circumstances in judicial practice, the perpetrator may not be sentenced to actual sentence. Especially when the case has certain sentencing circumstances, it may be evaluated by the criminal law as "the circumstances are minor and there is no need to be sentenced." At this time, it is entirely possible to terminate the case in the procuratorate's review and prosecution stage, and the procuratorate will make the decision to not prosecute .
1. The amount is "small":
Guangjian Criminal No Prosecution (2022) No. 11
After review and investigation by this court in accordance with the law, it was found that on December 30, 2020, the unprosecuted person Wang A was instructed by Wang B (handled in another case). Through the actual control of Wang B, Dongying Dongying ＊＊ Petrochemical Co., Ltd. and Dongying ＊＊ Petrochemical Sales Co., Ltd. and Shanghai ＊＊ Industry Co., Ltd. respectively issued 27 special value-added tax invoices to Shouguang ＊＊ Waterproof Material Factory and Shanghai ＊＊ Industrial Co., Ltd., involving 339,203.25 yuan in taxes.
This court believes that Wang Moujia committed the acts stipulated in Article 205 of the Criminal Law of the People's Republic of China, and he should be held criminally responsible for issuing a false VAT special invoice. However, the crime is minor and has circumstances such as confession and repentance. According to Article 37 of the Criminal Law of the People's Republic of China, there is no need to sentence the sentence. In accordance with the provisions of Article 177, paragraph 2 of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Wang Moujia.
Taijiao Procuratorate Public Prosecution Criminal No. 214
After review and investigation by this court in accordance with the law, the Taizhou Jiaojiang Moumou Sewing Factory invested by the unprosecutor Pan Moumou, without actual goods transactions, obtained the Taizhou Huijian Import and Export Co., Ltd. operated by Huang Moumou (refused) by paying the invoice fee by paying the invoice fee by paying the invoice fee by Huang Moumou (judgment). The price tax totaled RMB 400,500 and the tax amount was RMB 58,192.32, and used to deduct taxes. On October 25, 2017, the unprosecuted person, Pan Moumou, arrived at Moumou after being notified by the public security personnel. After the incident, the Taizhou Jiaojiang Moumou Sewing Factory has paid all the taxes.
This court believes that the unprosecuted person Pan Moumou committed the act stipulated in Article 205 of the Criminal Law of the People's Republic of China, which constitutes the crime of issuing a special value-added tax invoice. The amount of the crime of the unprosecuted person Pan Moumou is small, and it is a first-time offender or an occasional offender. There is a frank plot. Taizhou Jiaojiang Moumou Sewing Factory has paid the tax . In summary, the crime of the unprosecuted person Pan Moumou is minor, and according to Article 37 of the Criminal Law of the People's Republic of China, there is no need to be sentenced to a sentence. According to the provisions of Article 173, paragraph 2 of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Pan.
2. The amount is large:
Cangjian Criminal No Prosecution (2022) No. 6
After review by this court in accordance with the law, the legal representative of Cangnan County *** Co., Ltd. Huang Moumou and shareholder Fu Moumou (the above two people handled separately) did not have real goods transactions, and after the introduction of the unprosecuted person Huang Moumou, the handling fee was paid at a ratio of 6.5% of the face value, and purchased false value-added tax invoices from Ruian City *** Co., Ltd. for tax deductions. A total of 460 false VAT special invoices were purchased, with a total price tax of 5882,496 yuan and a total tax deduction of 841,006.37 yuan. The unprosecuted person Huang Moumou obtained a benefit fee of 1% of the total price and tax.
Cangnan County *** Co., Ltd. has paid a supplementary tax of 841,006.37 yuan on June 13, 2021. On December 13, 2021, the unprosecuted person Huang Moumou voluntarily surrendered and withdrew the illegal income of 58,824.96 yuan.
This court believes that in order to help others defraud national taxes, the non-prosecutor Huang Moumou introduced others to issue a special value-added tax invoice. The amount of false taxes is large, causing national tax losses. His behavior violated the provisions of Article 205 of the Criminal Law of the People's Republic of China , but the circumstances of the crime are minor, with circumstances such as surrendering, voluntary confession and acceptance of punishment, paying taxes and withdrawing illegal income. According to Article 37 of the Criminal Law of the People's Republic of China, there is no need to be sentenced to prison. In accordance with the provisions of Article 177, paragraph 2 of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Huang.
North Criminal Prosecution (2020) Z334
After review by this court in accordance with the law, it was found that the unprosecuted person Zhu Moumou is the financial officer of Chongqing ＊＊ Machinery Manufacturing Co., Ltd. (hereinafter referred to as ＊＊ Company), and Qiu Moujia is the actual controller of ＊＊ Company. From September 2017 to December 2018, in order to deduct taxes, when the company and Lu Moumou (has sued) had no real goods transactions, Qiu Moujia contacted Lu Moumou and arranged for Zhu Moumou to connect in detail, and purchased 105 special value-added tax invoices issued by Chongqing *** Waste Material Recycling Co., Ltd., Chongqing *** Material Recycling Co., Ltd., Chongqing *** Recycling Resources Co., Ltd., etc. from Lu Moumou, with a total price tax of 11.6822804 million yuan, a total tax amount of 1.6625375 million yuan, and a total tax amount of 1.6625375 million yuan, and a total tax amount of 1.6625375 million yuan. On March 27, 2019, the company transferred the input tax of 6 of the invoices of RMB 88,858.63 and paid the value-added tax and various taxes. On May 27, 2019, the defendant Zhu Moumou was arrested after being notified by the public security organs. After the incident, the company has paid all the taxes involved to the tax authorities.
This court believes that the unprosecutor Zhu Moumou carried out the act stipulated in Article 205 of the Criminal Law of the People's Republic of China, but the circumstances of the crime are minor, with surrender, accomplice, voluntary confession and acceptance of punishment, and repaid all taxes. According to Article 37 of the Criminal Law of the People's Republic of China, there is no need to sentence the sentence. In accordance with the provisions of Article 177, paragraph 2 of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Zhu Moumou.
3. The amount is huge:
A Zuo Procuratorate Criminal Prosecution [2020] Z18
After this court reviews in accordance with the law, it was found that in early 2016, Liu Moumou, an accountant of Junggar Banner, Ordos City, Inner Mongolia Autonomous Region, contacted Song Moumou, a salesperson of Alxa League Trading Co., Ltd. (handled in another case), and wanted to issue a special value-added tax invoice for Junggar Banner ＊＊ Transportation and Sales Company through Alxa League Trading Co., Ltd. and promised to give a 5% handling fee of the face value. Song Moumou reported the matter to the legal person of the company, Yang Moubré. Yang Moumou B agreed and instructed Song Moumou to be responsible for the invoice issue. Yang Mou A, the person who was not prosecuted, knew that Alxa League Trading Co., Ltd. had issued a special value-added tax invoice for Junggar Banner Transportation and Sales Company, was also responsible for returning the payment transferred from Junggar Banner Transportation and Sales Company to the other party through transfer and collection, and fabricating the illusion of sales transactions between the two parties. During 2016, Alxa League Trading Co., Ltd. fabricated the fact that it sold 22 cars to Ordos Junggar Banner Transportation and Sales Company, and issued 64 false invoices to the other party, with a total amount of 7090598.46 yuan, a tax amount of 1205401.54 yuan, and a total price tax of 8296000.00 yuan. All the national tax losses and illegal gains caused by this case have been recovered and no losses have been caused to the state.
This court believes that the unprosecutor Yang A committed acts stipulated in Article 205 of the Criminal Law of the People's Republic of China, but the circumstances of the crime are minor. The unprosecutor Yang A voluntarily pleaded guilty and accepted punishment by . According to Article 15 of the Criminal Procedure Law of the People's Republic of China, the crime can be handled with leniency in accordance with the law. The secondary role played by Yang Moujia in the unprosecuted person in this case is an accomplice of . According to Article 27 of the Criminal Law of the People's Republic of China, the punishment should be reduced or reduced or should be exempted from punishment . According to Article 177, paragraph 2 of the Criminal Procedure Law of the People's Republic of China, it is decided not to prosecute Yang Moujia.
Yuanchuan Prosecutor's Criminal Prosecution (2016) No. 19
This court believes that Ba Mou A has implemented the acts stipulated in Article 205, paragraph 1 and paragraph 3 of the Criminal Law of the People's Republic of China, but the crime is minor, and has a short time to participate in the issuance of special value-added tax invoices, plays a secondary role in the joint crime with Bayi, and is an accomplice. According to Article 37 of the Criminal Law of the People's Republic of China, there is no need to be sentenced to a sentence. decided not to prosecute Ba Mou A in accordance with the provisions of Article 173, paragraph 2 of the Criminal Procedure Law of the People's Republic of China.
Legal interpretation:
In my country, whether to file a public prosecution is decided by the procuratorate, which has the discretion. From the perspective of application scope, the law limits the discretion of the procuratorate to the scope of cases with "slight circumstances", and its purpose is to limit the discretion of the procuratorate. Whether the case meets this prerequisite still needs to be judged in a comprehensive manner. Judging from the above cases, if the false tax amount is small or just reaches the standard of large amount, and the perpetrator surrenders, confesses guilty, admits guilt and accepts punishment, pays taxes, returns the stolen goods, etc., the procuratorate may make a decision not to prosecute. However, when the amount of false tax is huge or close to the standard of huge amount, the procuratorate may only not prosecute accomplices with a good attitude towards guilt. It can be seen from this that whether it can be identified as an accomplice in a joint criminal case will inevitably become the focus of debate. In addition, the actual use of the procuratorate's discretionary power without prosecution is relatively uncertain, so not all defendants with the above circumstances can terminate the litigation process during the review and prosecution stage. Although the early termination of the litigation process is a good result for the suspect, it avoids the consumption of energy and property caused by litigation. But in practice, sentencing defense is often necessary during the trial stage and strive for lenient punishment.
Please send a private message to
Beijing Lanqin Lawyer Criminal Legal Service Group (public account)
