Editor's Note:Under the export tax refund policy, foreign trade enterprises must use value-added tax ("VAT") special invoices and customs declaration forms as vouchers to apply for export tax refunds. In cases of fraudulently obtaining export tax refunds, wrongdoers typically carry out operations centered on invoices and customs declaration forms: on the one hand, by paying invoice-issuing fees to have others issue false VAT special invoices to themselves, so as to match the information of another person's exported goods; on the other hand, by obtaining another person's customs declaration forms through unlawful means, thereby fraudulently obtaining export tax refunds. As for the party committing the tax fraud, it is generally held to constitute the crime of fraudulently obtaining export tax refunds; however, regarding the characterization of the party issuing false invoices, there are divergences in practice, leading to inconsistent adjudicative outcomes. Some judicial authorities hold that the conduct of the party issuing false invoices constitutes the crime of fraudulently obtaining export tax refunds; others hold that the party issuing false invoices does not constitute the crime of fraudulently obtaining export tax refunds, but rather the crime of falsely issuing VAT special invoices. Regarding the determination of the crime of falsely issuing VAT special invoices, there are also divergences—some judicial authorities hold that the party issuing false invoices independently carries out the act of false issuance and constitutes a principal offender; others hold that the party issuing false invoices provides invoices for the tax-fraud party and, together with the tax-fraud party, forms a joint crime within the scope of the crime of false issuance, and constitutes an accessory. Because the crime of fraudulently obtaining export tax refunds carries a heavier penalty than the crime of false issuance, for cases involving falsely issued tax amounts of 5 million yuan or more, if the conduct is not characterized as being an accessory to the crime of fraudulently obtaining export tax refunds, then, disregarding other circumstances, the best possible outcome would still be a fixed-term imprisonment of five years; if characterized as a principal offender in the crime of false issuance, the term of imprisonment is usually more than ten years; if characterized as an accessory to the crime of false issuance, it may be possible to lower the sentencing bracket and seek a three-year fixed-term imprisonment with suspension of sentence. The related case of false issuance and tax fraud selected inReference to Criminal Trials(Volume 147) characterizes the party issuing false invoices as committing the crime of false issuance while also finding circumstances of an accessory, thereby providing an important reference for the criminal defense of the party issuing false invoices in such cases. This article briefly analyzes the case for readers' reference.

I. Introduction of the Case: The Case of Hong Mouzhen and Others Fraudulently Obtaining Export Tax Refunds and Pan Moumou and Others Falsely Issuing Special Invoices

In this case, Hong Mouzhen contacted Pan Moumou to issue VAT special invoices for four foreign trade enterprises controlled by Zhou. Pan Moumou contacted Su Moumou and others to purchase VAT special invoices. The method of operation was as follows: Pan Moumou and Su Moumou had Chang'an Times Company issue VAT special invoices for the four foreign trade enterprises controlled by Zhou. The actual controller of Chang'an Times Company arranged for Liao Moumou and others, while clearly knowing that no actual business occurred, to sign false purchase contracts in the name of the four foreign trade enterprises controlled by Zhou when their own company purchased goods from upstream suppliers such as Guang Moujia and Company, create false capital flows, and adopt the method of separating invoices from goods to issue input VAT special invoices to the foreign trade enterprises controlled by Zhou, while collecting invoice-issuing fees therefrom. In addition, Zhu Mouai, Luo Mou, and others also used the above method, while clearly knowing that no actual goods purchase and sale business existed, to issue VAT special invoices for the foreign trade enterprises controlled by Zhou by paying invoice-issuing fees to Chang'an Times Company. The four foreign trade enterprises controlled by Zhou signed false mobile phone export foreign trade contracts with multiple Hong Kong companies controlled by Hong Mouzhen. Hong Mouzhen obtained false customs declaration forms by borrowing goods and arranging documents. Thereafter, the four foreign trade enterprises used the aforementioned VAT special invoices and customs declaration forms to falsely declare to the tax authorities and fraudulently obtain 725.73 million yuan in state export tax refunds.

Among them: Pan Moumou falsely issued VAT special invoices with a total price and tax amount of 4,996.43 million yuan, and the invoices were used to fraudulently obtain

export tax refunds of 715.92 million yuan; Su Moumou falsely issued VAT special invoices with a total price and tax amount of 4,712.03 million yuan, and the invoices were used to fraudulently obtain export tax refunds of 676.50 million yuan; Liao Moumou falsely issued VAT special invoices with a total price and tax amount of 1,962.03 million yuan, and the invoices were used to fraudulently obtain export tax refunds of 251.02 million yuan; Zhu Mouai and Luo Mou falsely issued VAT special invoices with a total price and tax amount of 252.97 million yuan, and the invoices were used to fraudulently obtain export tax refunds of 9.07 million yuan.

Ultimately, the court found that Pan Moumou, Su Moumou, Zhu Mouai, Liao Moumou, and Luo Mou, as the parties issuing false invoices, constituted the crime of falsely issuing VAT special invoices and possessed circumstances of an accessory, and sentenced them to fixed-term imprisonment ranging from eight years to three years, with some receiving suspended sentences. The remaining defendants constituted the crime of fraudulently obtaining export tax refunds, with sentences ranging from fourteen years to five years of fixed-term imprisonment. In this case, although Pan Moumou, Su Moumou, Zhu Mouai, Liao Moumou, and Luo Mou constituted the crime of falsely issuing VAT special invoices, on the issue of distinguishing principal and accessory offenders, the court evaluated the five together with the defendants convicted of fraudulently obtaining export tax refunds, finding Hong Mouzhen to be a principal offender and the other defendants to be accessories. This adjudicative view warrants in-depth analysis.

II. Why Does Falsely Issuing Invoices for the Tax-Fraud Party Not Constitute the Crime of Fraudulently Obtaining Export Tax Refunds?

Article 204 of theCriminal Lawprovides that whoever fraudulently obtains state export tax refunds by falsely reporting exports or other deceptive means, if the amount is relatively large, constitutes the crime of fraudulently obtaining export tax refunds. The 2002Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Fraudulently Obtaining Export Tax Refunds(Fa Shi [2002] No. 30, now invalid) clarified what constitutes falsely reporting exports or other deceptive means. Article 1, Item (3) provided: "'Falsely reporting exports' as provided in Article 204 of theCriminal Lawrefers to conduct with the purpose of fabricating the fact of exporting already-taxed goods, including any of the following: ... (3) falsely issuing, forging, or unlawfully purchasing VAT special invoices or other invoices that can be used for export tax refunds." Subsequently, in 2024, the Supreme People's Court and the Supreme People's Procuratorate issued theInterpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Administration(Fa Shi [2024] No. 4), Article 7, Item (1) of which also provides: "Under any of the following circumstances, it shall be determined as 'falsely reporting exports or other deceptive means' as provided in Paragraph 1 of Article 204 of theCriminal Law: (1) using falsely issued, unlawfully purchased, or otherwise unlawfully obtained VAT special invoices or other invoices that can be used for export tax refunds to declare export tax refunds."

Accordingly, some judicial authorities hold that as long as the invoice-issuing party issues VAT special invoices for the tax-fraud party and the invoices are used by the invoice-receiving party to declare and fraudulently obtain export tax refunds, the invoice-issuing party constitutes an accomplice to the crime of fraudulently obtaining export tax refunds. This view ignores the subjective purpose of the invoice-issuing party and is clearly untenable. Under the principle of unity of subjective and objective elements, determining the establishment of a crime requires simultaneous examination of the subjective elements, judging whether the actor had a common intent to fraudulently obtain state export tax refunds. If the invoice-issuing party had a conspiracy with the tax-fraud party to jointly fraudulently obtain export tax refunds, then it constitutes an accomplice to the crime of fraudulently obtaining export tax refunds; if the invoice-issuing party did not know that the tax-fraud party would use the invoices to fraudulently obtain export tax refunds, or merely knew in general terms that the invoices would be used for export declaration but had no common conspiracy to commit tax fraud, then it cannot constitute the crime of fraudulently obtaining export tax refunds. Because the subjective state of mind of the invoice-issuing party is difficult to ascertain directly, in practice the subjective state is often inferred through objective conduct, such as deep association with the tax-fraud party or an agreement to share the tax refunds.

In this case, Pan Moumou, Su Moumou, Zhu Mouai, Liao Moumou, Luo Mou, and others participated only in the false invoice issuance stage and collected invoice-issuing fees; they did not participate in the core tax-fraud stages of arranging documents, obtaining customs declaration forms, declaring tax refunds, or sharing tax refunds, nor did they have a common conspiracy with the downstream tax-fraud subjects to fraudulently obtain export tax refunds. Therefore, the court found that they constituted the crime of falsely issuing VAT special invoices rather than the crime of fraudulently obtaining export tax refunds.

III. Can Principal and Accessory Offenders Be Uniformly Distinguished Across Defendants Charged with Different Crimes?

TheCriminal Lawprovides: "A joint crime refers to a crime jointly committed intentionally by two or more persons. Whoever plays a primary role in a joint crime is a principal offender; whoever plays a secondary or auxiliary role is an accessory." Accordingly, only in a joint crime does the issue of distinguishing principal and accessory offenders arise. Some judicial authorities hold that where the upstream invoice-issuing party constitutes the crime of falsely issuing VAT special invoices while the downstream invoice-receiving party constitutes the crime of fraudulently obtaining export tax refunds, because the two sides are charged with different crimes, they do not constitute a joint crime, and therefore the two categories of defendants cannot be uniformly assessed for principal-accessory relationships; rather, principal and accessory offenders can be distinguished only among defendants who form joint criminal relationships within the same charge. However, this view fails to correctly understand the relationship between the crime of tax fraud and the crime of false issuance, and its conclusion is clearly biased.

First, a basic question is: where tax fraud is committed by obtaining falsely issued invoices, does the tax-fraud party also constitute the crime of false issuance? As stated above, falsely issuing VAT special invoices is a means of fraudulently obtaining export tax refunds. By fraudulently obtaining export tax refunds through this method, the tax-fraud party necessarily carries out the act of falsely issuing VAT special invoices. However, the existence of an act does not equal the establishment of a crime; it is still necessary to determine whether the act satisfies the constitutive elements of the crime of falsely issuing VAT special invoices. From the perspective of constitutive elements, the tax-fraud party, by paying invoice-issuing fees to have others falsely issue VAT special invoices to itself, falls within the situation of "having others falsely issue to oneself" as provided in Article 205 of theCriminal Law; using the falsely issued invoices to declare export tax refunds is essentially using the falsely issued invoices as vouchers to fraudulently obtain export tax refunds. The tax refunded through export tax refunds is essentially domestic VAT already collected by the state. The tax-fraud party's use of falsely issued invoices to declare export tax refunds is homogeneous with using falsely issued invoices for domestic input deduction to fraudulently obtain excess tax refunds, in terms of infringement upon state VAT revenue, and conforms to the subjective purpose of "fraudulently offsetting tax payments" under the crime of falsely issuing VAT special invoices. Article 205 of theCriminal Lawlists "falsely issuing VAT special invoices" and "falsely issuing invoices used for fraudulently obtaining export tax refunds" in parallel, indicating that the act of falsely issuing invoices for the purpose of fraudulently obtaining export tax refunds also falls within the regulatory scope of that article and is not excluded from the establishment of the crime of false issuance merely because the invoices were not used for domestic input deduction. Therefore, where tax fraud is committed by obtaining falsely issued invoices, the tax-fraud party simultaneously constitutes the crime of falsely issuing VAT special invoices and the crime of fraudulently obtaining export tax refunds. In terms of the number of crimes, the two form a relationship between a means act and a purpose act; under the rule for dealing with implicated offenses, the heavier crime is chosen for punishment, and the crime of fraudulently obtaining export tax refunds, which carries a heavier statutory penalty, is applied.

In accomplice theory, the theory of partial common crime is currently widely accepted in practical circles in China, namely, where two or more persons jointly commit different crimes, if those different crimes overlap in nature, a joint crime is established to the extent of the overlap. For the tax-fraud party, although it is ultimately characterized as the crime of fraudulently obtaining export tax refunds, its means act already satisfies the constitutive elements of the crime of falsely issuing VAT special invoices. Although the tax-fraud party and the invoice-issuing party have different criminal purposes, they share a common intent and common conduct at the level of the act of falsely issuing VAT special invoices. The tax-fraud party's purpose of tax fraud, which exceeds the scope of false issuance, does not affect the establishment of a joint crime between them to the extent of the overlap in the crime of false issuance.

The next question is whether the invoice-issuing party constitutes an accessory. It should be noted that the act of "falsely issuing for others" carried out by the invoice-issuing party, although expressly listed as a type of conduct of perpetration in Paragraph 3 of Article 205 of theCriminal Law, is not equivalent to principal-offender status. Perpetrator and principal offender belong to two separate evaluative dimensions—characterization and sentencing. The accessory who "plays a secondary role" as provided in Article 27 of theCriminal Lawitself includes the situation of a secondary perpetrator. Therefore, even if the invoice-issuing party carries out the act of perpetration of false issuance, it may still be found to be an accessory. Specifically, a comprehensive examination should be conducted, based on factors such as the formation of criminal intent, the degree of importance of the act of perpetration within the overall constitutive elements of the crime and the role it plays, the degree of connection between the occurrence of the harmful consequence and the act of perpetration, and the distribution of illegal gains, to determine whether the actor's criminal conduct plays a primary or secondary role. In this case, from the perspective of the initiator of criminal intent, Hong Mouzhen actively sought the invoice-issuing party to provide invoices for the purpose of tax fraud and was the initiator of the tax-fraud criminal intent; the criminal intent to falsely issue on the part of Pan Moumou and others was induced. From the perspective of the role and result of the act of perpetration, Pan Moumou and others provided only auxiliary assistance; the tax-fraud result depended not only on their act of false issuance, while Hong Mouzhen manipulated the entire tax-fraud process. From the perspective of profit obtained from the criminal conduct, the invoice-issuing party collected only invoice-issuing fees and did not participate in sharing the tax-fraud party's tax refunds; the benefits it obtained were significantly smaller than the export tax refunds obtained by the tax-fraud party. Therefore, the court found that Pan Moumou and others constituted the crime of falsely issuing VAT special invoices while occupying a secondary position in the joint crime, and thus constituted accessories.

IV. Conclusion

At present, cross-departmental big-data information-sharing mechanisms are being continuously implemented, and the normalized joint mechanism of eight departments to combat fraudulent obtaining of export tax refunds is being continuously improved, significantly increasing the criminal risk in cases of fraudulently obtaining export tax refunds. In judicial practice, the crime of fraudulently obtaining export tax refunds is highly intertwined with the crime of falsely issuing VAT special invoices. Cases involve multiple criminal chains such as false issuance, goods allocation, customs declaration, capital flows, and tax refund declaration, and factual determination, evidentiary review, and legal application are all relatively complex. For such chain-type tax-related crimes, characterization and evaluation should be conducted separately based on the stage in which each actor participated and the specific conduct carried out, and it is impermissible to convict and punish all of them indiscriminately for the crime of fraudulently obtaining export tax refunds. As for parties characterized as committing the crime of falsely issuing VAT special invoices, it is also impermissible to refuse to jointly distinguish principal and accessory relationships merely because the charges differ.