Carlos Daza Gómez

General aspects of customs offenses

SUMARIO: I. Introducción. II. Contrabando. III. Contra-

presumed ban. IV. Bibliography

I. Introduction

The issue of the legal good protected by customs offenses is far from being settled.
The positions range from those who link the interest protected by these ...
It directly relates to the function or with the customs authority, more specifically,
with the effective exercise of the control function; those who reduce it to the assets
public in a functional sense, that is, as the mechanism that allows for the Es-
to carry out their work to meet public needs; those who expand it
to a public economic order, due to its repercussions on the national economy,
they harm fair competition among the different agents, the transactions
commercials, international trade, the exchange rate regime, labor policy,
the national industry, etc.; and, lastly, those who argue that customs crimes
crimes have a plural offensive character, as each criminal figure responds to its
its own foundation and has a specific sense of protection.

II. Smuggling

Article 102 of the Federal Tax Code.- Commits the crime of smuggling-
to anyone who introduces goods into the country or extracts them from it:

Professor at the Faculty of Law of the National Autonomous University of Mexico,

by opposition at the undergraduate and postgraduate levels; has two specialties in Law-
in Criminal Law, Master's and Doctorate with Honorary Mention. National and international speaker.
founder president of the Ibero-American Institute of Criminal Law. Currently a lawyer.
applicant.

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I. Omitting the total or partial payment of contributions or fees compen-

subjects that must be covered.
II. Without the permission of the competent authority, when this requirement is necessary.
III. Regarding prohibited import or export.

Anyone who brings in foreign goods also commits the crime of smuggling.
coming from free zones to the rest of the country in any case before-
rioters, as well as those who extract them from fiscal or supervised premises without that
have been legally delivered to them by the authorities or by the people
authorized for that.
The crime of smuggling is essentially a property crime that has to do with
with a detriment to the Federal Treasury, which must be addressed within the scope of
its area of application, which is to verify through a declaration of harm-
the head of the SHCP, through a complaint in which degree and how they were harmed
the interests of the Federal Treasury.
One must reflect on the punishment imposed when there are violations to
international business practices, so that the punishment is the
efficient to allow the industrial sectors to be competitive.1
For the fulfillment of the various tasks assigned to the Attorney General's Office
Attorney General of the Republic, and more specifically to the Federal Public Ministry
The current restructuring of the Institution aims to enhance efficiency.
and attention to the crimes that have the greatest incidence in the country and that due to their com-
complexity and harmful results in the political, legal, economic, and social spheres,
they deserve diligent, careful attention aimed at reducing and inhibiting their
commission and achieve the effective sanction against them, by the jurisdictional body
national, so the workloads have been distributed evenly and
structuring the organization in such a way that the results are positive.
The Subprocuraduría for Specialized Investigation of Federal Crimes,
is in charge of four Specialized Administrative Units (Art. 29 of
Regulations of the Organic Law of the PGR) which are as follows:

a) In the investigation of crimes committed against copyright and the

industrial property (fraction I);
b) In Investigation of Tax and Financial Crimes (Fraction II).
c) In the investigation of crimes committed by public officials and against the
administration of Justice (fraction III)

1
The crime of customs reception and the regulation of intent; María Magdalena Ossan-
Widow Dón. Law and practice; Vol. 14; no. 001. University of Talca; Chile. 2008.

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As for the Specialized Unit for the Investigation of Physical Crimes

Financial and Financial, consists of two areas: A Financial one and
another Prosecutor, which is referred to by the latter, has fourteen investigation tables
fighters and who is in charge of the prosecution of smuggling crimes and
tax fraud.
Regarding the crime of smuggling, it is clear to note that the commission of this
illicit, it is quite harmful to Mexico's formal legal market, since
causes million-dollar losses to established companies and generates serious per-
tax litigation.
Consequently, while the smuggler earns income
that can quintuple their investment, which are not taxed by
no concept of payment of rights or tax contributions, the scarce
profits or null, that the entrepreneur or industrialist obtains, are even more visible
reduced with expenditures that their activities require them to make.
It is important to note that not only the border area of the country for the inter-
change of goods introduction, it is the only route used by the counter-
bandits, as well as the aircraft and international air transit areas,
The ports in the Gulf of Mexico and the Pacific Ocean have been outlets...
plagued by smugglers in the North of the country, the passage through Tamaulipas,
Sonora, Nuevo León, and Baja California are favorable fields for the invasion of pro-
illegal foreign pipelines in large quantities and from there where they are transported
located in the main cities and urban areas.
It should be noted that in recent years informal trade has
visa supplied with products from China, Korea, and Taiwan,
which are not only rejected by Mexican society, as their costs
they are accessible, but have grown and impacted the market in such a way that
productive of Mexico, that national consumption is rejected by the population itself
consumer action.
Therefore, it should be noted that fighting this crime requires
the participation of local, municipal, federal authorities must start
from the premise of considering this as a matter of national security, in ra-
zone that has negatively impacted the national economy.
For the above and by virtue of what is established in article 50, section I, point-
from the Organic Law of the Federal Judiciary, which states that
those are federal crimes, the Attorney General's Office is competent
attempt to learn about the investigation and prosecution of this crime.
However, in order for the Public Ministry to initiate the investigation and
probable commission of the crime of smuggling, and comparable to smuggling, is ne-
it is necessary to meet the requirement of admissibility consisting of the fact that the Secretariat

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the Ministry of Finance and Public Credit shall issue the respective declaration in cases of
smuggling of goods as required by article 92, section II of the Fiscal Code
cal of the Federation and Article 113 of the Federal Code of Criminal Procedure, being-
This is a crime that is prosecuted only by complaint from the offended party.
It is for this reason that the onset of the prosecutorial action for the offense of
smuggling and comparable smuggling, by the Public Ministry of the
Federation, it must be carried out in accordance with what is established in the Tax Code.
and based on the respective complaint in order to initiate the investigation of the
facts, proceeding to the integration of the corresponding preliminary investigation, and
once the body of the crime and the probable responsibility of the indi-
the formula for the presentation of the deposit before the jurisdictional body.

III. Presumed Smuggling

Let's see what the fractions from XVto XVIII of article 103 establish, and of
we simultaneously comment on its content.

"The crime of smuggling is presumed to have been committed when:"

Fraction XV. Temporary imports shall be made in accordance with Article 108.
from the Customs Law without having authorized maquila or export programs
by the Ministry of Economy, (this article of the Customs Law refers to all
those temporary imports that are made of those goods that
are intended for a process of production, transformation, or repair, and that
will be exported according to a program authorized by the Secretary of Eco-
(name) of goods that are not covered by the authorized programs;
goods are imported as inputs that, due to their product characteristics, end up -
do not be susceptible to being subjected to processes of preparation, transformation or
repair; temporarily continue importing the goods planned in a program -
or export processing when it is no longer in force or when it is con -
continue temporarily importing the goods planned in a maquila program or
export of a company that has changed its name or corporate name, has
merged or split and failed to submit the corresponding notices in the Re -
Federal Taxpayer Registry and in the Ministry of Economy." (On many occasions-
Yes, a person can commit some kind of tax offense, without the slightest in-
Tension. Most of the time it is due to ignorance of the law. What it establishes
this fraction is important to highlight, since when this type is going to be carried out

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of legal transactions, such as the change of the company's name, or

the merger or split, it is extremely important to draft the minutes of the meeting correctly.
blea where the relevant matters were agreed upon, and authorize the date on which they will take effect
legal effects of the agreements reached in those assemblies.
Fraction XVI. The temporarily imported merchandise for maquila is transferred.
companies with export programs authorized by the Ministry of Economy
to companies that do not have such programs, when the merchandise is not available
protected by the program of the acquiring company or its term has expired
temporary import. (Deserves the same comment as the previous one. In some
mistakes can be made on occasions and cause the person's behavior,
frame the normative hypothesis, as this case could be. If the contributor-
are you dedicating yourself to the temporary importation of goods, or do you intend to do so?
In my opinion, you should hire the advice of a professional in international trade.
prior to international trade, or if applicable, to their corporate lawyer of
trust and not leave everything in the hands of your general accountant, as he may try
to cover areas that are not within its competence, it is likely, and it would be very logical,
that perhaps I would end up making certain mistakes whose consequences could be ne-
negatives, both for him and for the owners of the company.
Fraction XVII. It shall not be credited during the period referred to in article 108, frac -
Section I of the Customs Law states that goods temporarily imported for maquila -
doors or companies with export programs authorized by the Secretariat of Economy
mine, were returned abroad, were transferred, were allocated to another regime
customs or those found at the residence where the process will take place
its manufacture, transformation or repair manifested in its program.
It is very common for various reasons that they are not returned on time.
cancías. In my opinion, the SHCP has not fully exercised its powers.
cite the criminal action in a full manner, as until now the actions have-
the measures that have been promoted have been in a moderate sense, in comparison to the
a wide range of possibilities that it has to exercise it. Therefore, I believe that it is
it's better to take the preventive measures that lead to it, rather than the resolutive ones.
outside the offices.)
Fraction XVIII. The return of the temporarily imported goods will be omitted.
lies under the protection of Article 106 of the Customs Law. It is worth noting that also
Those who introduce goods into another country will commit the crime of smuggling.
from the national territory omitting the total or partial payment of taxes to
foreign trade that corresponds in that country.
Due to the tightening of the state's work against smuggling.
by giving the State more elements to be able to do it, it is clear that
it is necessary to work on several things, especially to increase competitiveness,

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through productivity, providing them with more elements, especially in investing

in logistics and work down the chains in such a way that when
there is a problem, for example, milk where there is an internal supply-
cheap milk, other products that are not milk, expensive production of
what in Mexico has a lot to do with the cost of production in Mexico, because
what needs to be done is for that milk to be competitive so that it can
compete with other countries and compete with other products, to build from
the base of the chain and those things that cannot be produced if imported,
but not increasing the price of the product to which more added value is added.
Contraband equipment comparable to that is not found, just like the
fundamental smuggling, precisely unified in the doctrine.

IV. Bibliography

Ossandón Widow. María Magdalena; The crime of customs receiving and the nor-
Motivation of deceit; Law and praxis; Vol. 14; num 001. University of Talca;
Chile. 2008.

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