Criminal compliance system since the pilot, in the “false” cases have been used in a large number of cases, once became the lawyers defense work of the law. However, with the accumulation of judicial practice experience, criminal compliance cases have exposed some problems, the necessity of the system, the feasibility of the need for further reflection and discussion, in the case of whether the criminal compliance can be initiated in the face of greater uncertainty, the urgent need for a new defense program. On the other hand, the two high tax-related new judicial interpretations of the composition and sentencing of the crime of “false opening” has been significantly amended, providing new opportunities for lawyers' defense work. Under the guidance of the new judicial interpretation, the judicial authorities to collect evidence, determine the facts, the overall thinking of the application of the law has changed, whether the defense lawyer can correctly understand the content of the new judicial interpretation, accurately identify the current “false opening class” case focus of controversy, accurately grasp the core points of the defense, is the key to the case can be properly dealt with.

I. the new judicial interpretation to adjust the criminalization and sentencing circumstances, the subject of criminal risk remains high

“False opening class” crime sentencing range is divided into three years of imprisonment or detention, more than three years than ten years of imprisonment, more than ten years of imprisonment or life imprisonment three grades. Under the old Judicial Interpretation, the only sentencing circumstance for this crime was the amount of tax falsely invoiced, and the corresponding sentencing circumstance for the third sentencing range was the amount of tax falsely invoiced of more than 2.5 million yuan, while the new Judicial Interpretation raises this criterion to more than 5 million yuan, which is, to a certain extent, in favor of the parties concerned.

However, on the other hand, the new judicial interpretation has added “the amount of tax that cannot be recovered before prosecution” and “having been subjected to criminal punishment or more than two administrative punishments within five years for false invoicing”, which objectively increases the criminal risk of the subject involved in the case. The criminal risk of the subject involved in the case is objectively increased. For example, the person involved in the false tax amount of 400,000 yuan, according to the old judicial interpretation in the first grade of the sentencing range, regardless of whether the person to pay the tax, the maximum statutory penalty is three years of imprisonment. However, under the new judicial interpretation, if the person concerned does not pay the tax before the prosecuting authority institutes prosecution, resulting in irrecoverable tax amounting to more than 300,000 RMB, the person concerned will fall into the second level of the sentencing range, i.e., the maximum statutory penalty is ten years' imprisonment. Under the new judicial interpretation, the subject involved in the case needs to fully recognize and assess the criminal risk brought about by the change in the circumstances of the conviction and sentence.

II. whether to constitute a crime or not is still the core strategy for the defense of “false opening type” criminal cases

In the past, “false driving” criminal cases in the first or even the second sentencing range may realize the effect of not prosecuting through criminal compliance rectification. Even in the third grade sentencing range, effective compliance rectification is an important lenient sentencing circumstances, supplemented by self-surrender, merit, guilty plea and other traditional lenient circumstances, conditions for the final judgment of probation, many defense lawyers have realized the change from the “crime school” to the “sentencing school”. Many defense attorneys have realized the change from “crime-constructionist” to “sentence-constructionist”. At this stage, due to the lack of compliance and rectification of the circumstances, the defense space of “sentencing school” has turned sharply downward, and the key point of the defense of “false opening” criminal cases, especially the larger cases, has been readjusted to the core issue of “whether to constitute a crime? “The core issue.

It is noteworthy that, although the new judicial interpretation does not classify this crime into the category of “purpose crime” and “result crime”, it regulates the purpose and result of the crime as the conditions of this crime, i.e., “not to fraudulently offset the tax for the purpose and not to cause the tax due to the offset”. If the purpose of the crime is not to fraudulently offset the tax, and no fraudulent loss of tax is caused by the offset, the crime shall not be punished. This means that the investigating authorities and prosecuting authorities will focus on whether the person concerned has committed the act of fraudulent opening when accusing the person concerned of the crime, and may not take the initiative to investigate and collect the evidence of the purpose and result of the crime, but the defense lawyers can collect, submit, and present the evidence that the person concerned does not have the purpose of fraudulently offsetting the tax and does not cause fraudulent loss of tax, and realize the crime in conjunction with the provisions of the new judicial interpretations. That is, the new judicial interpretation for the defense work provides opportunities, but also on the quality and ability of defense lawyers put forward higher requirements.

III. change the charge is also a “false” criminal case defense effective strategy

The new judicial interpretation in the provisions of the “false open class” crime at the same time, also made clear that the result of the crime is not necessarily innocent, may also constitute other crimes. Defense lawyers should not simply stick to the defense of innocence, should be combined with the facts of the case to develop a targeted defense strategy. If the person concerned does constitute other misdemeanors, should actively communicate with the judicial authorities, suggesting a change of misdemeanor charges or sentences, change the crime of the defense strategy is a feasible path to properly resolve the case in accordance with the law under the new judicial interpretation.

Reference to the Supreme People's Court on the interpretation of the new judicial interpretation of the article, “false opening class” crime and related crimes have a close connection, there are also obvious differences. The “false invoicing” cases usually complete the act of false invoicing by buying and selling invoices, which is in line with the constitutive elements of the crime of illegal purchase and sale of VAT invoices, as well as the behavioral elements of the crime of false invoicing of VAT invoices. For the invoice-receiving party, it is necessary to determine the crime according to its criminal purpose:

1.If the purpose of the party receiving the invoice is to cheat the tax, which belongs to the means of illegal purchase to realize the purpose of the crime of “false invoicing”, it shall be punished according to the crime of false invoicing of VAT.

2. If the purpose of the party receiving the invoice is to evade payment of tax, which is to realize the purpose of tax evasion by means of illegal purchase, it shall be dealt with as the crime of illegal purchase of value-added tax invoices and the crime of tax evasion, and the crime of tax evasion shall be subject to the administrative preliminaries according to the law.

3. If the purpose of the party receiving the invoice does not conform to the elements of other crimes, such as for the purpose of inflating the performance, financing and loan, the crime of illegal purchase of VAT invoices shall be dealt with according to the crime of illegal purchase of VAT invoices.

IV. unclear facts and insufficient evidence is the optional strategy for the defense of criminal cases of “false invoicing”

The case of “false invoicing” often involves a large number of subjects, complex transaction patterns, mixed business content, many cases in the investigation and handling process, the judicial authorities failed to do a comprehensive, full investigation and evidence collection, resulting in unclear facts, insufficient evidence, unable to exclude reasonable doubt. For example, in the case of suspected false invoicing in the petrochemical industry, the judicial authorities failed to find out the upstream and downstream situation of the transaction, and were unable to restore the complete chain of the business involved in the case, which led to the failure to find out whether the subject involved in the case had caused the VAT loss; and in the case of false invoicing in the category of flexible labor, although the judicial authorities confirmed that the invoicing party had received the money from the public and issued invoices, and then there was a flow of funds back to the public, the judicial authorities failed to further verify whether the funds were collected by the related account of the invoiced party paid externally to the actual seller, it is impossible to deny the authenticity of the business involved in the case. Lawyers should be combined with the case on the evidence collected by the judicial organs for analysis and judgment, in the case of evidence flaws or loopholes, lawyers should adjust the defense strategy, around the fact that the lack of evidence to put forward the defense point of view.

V. Objective consideration of the impact of guilty pleas on the length of sentences in cases

Plea bargaining system for infringement of freedom of communication, dangerous driving, concealment of the proceeds of crime and other minor criminal cases have important significance, so the social harm of such cases is small, and all criminal liability is easy to cause a waste of judicial resources, if the parties plead guilty, there is a higher chance of applying the misdemeanor of non-prosecution or exempted from criminal penalties. But the “false open type” crime involved in the amount of money is usually large, the party may face more than ten years of imprisonment risk, in the absence of other legal mitigating, mitigating circumstances, even if the party pleads guilty to the penalty, the case of the impact of the sentence is also extremely limited. At the same time, although China's implementation of the principle of independent defense, but from the judicial practice, the parties plead guilty to the lawyer's innocence of the inevitable negative impact, if the parties do have to fight for the innocent space, need to take into account the significance of the plea of guilty, carefully choose the strategy of self-defense.