In the new customs era of “closed inspection and inspection”, as an important branch of import and export business compliance, the legal risks of entry-exit inspection and quarantine cannot be ignored. To this end, we have written this series of articles from the perspective of lawyers. This article is the first one. It will first introduce the entry-exit inspection and quarantine supervision system and the main legal risks in order to let the import and export enterprises have a holistic understanding.
The entry and exit inspection and quarantine supervision content and legal norm system are relatively complex, involving import and export commodity inspection, entry and exit animal and plant quarantine, border health quarantine, import and export food safety and many other aspects. Therefore, in the actual import and export business, there are often enterprises that are subject to administrative penalties for violating the entry and exit inspection and quarantine regulations, and even some units and individuals are held criminally liable. At the same time, with the announcement of the “Regulations on the Implementation of the Measures for the Administration of Credits of Customs Enterprises of the People's Republic of China” (No. 178 of 2018) issued by the General Administration of Customs on November 27, 2018, enterprises were suspected during the application for certification. If a criminal case is filed in violation of the entry-exit inspection and quarantine regulations, the customs shall terminate the certification and be investigated for criminal responsibility. If the customs determines that it is a letter-of-trust enterprise, it will face joint punishment by 33 departments . It can be seen that how to effectively prevent the legal risks of entry-exit inspection and quarantine should attract sufficient attention from the import and export enterprises!
1. What is the entry and exit inspection and quarantine?
(1) What is the control of entry and exit inspection and quarantine?
Entry-exit inspection and quarantine refers to the entry and exit of goods (including animal and plant products) and the carrying of these commodities, animals and plants, and entry and exit in accordance with the requirements of laws, administrative regulations and international practices. Personnel's transportation and transportation equipment shall be collectively referred to as inspection, quarantine, appraisal, supervision and management, and implementation of sanitary quarantine and port health supervision for entry and exit personnel. The purpose of entry-exit inspection and quarantine is to protect the smooth development of the national economy and protect the safety and health of the public's life and living environment. At present, the main duties of the entry and exit inspection and quarantine undertaken by the customs are as follows:
(2) What are the statutory inspection and quarantine items?
According to the relevant laws and regulations of entry-exit inspection and quarantine, the Customs carries out inspection, quarantine, appraisal and other inspection and quarantine on entry and exit personnel, goods, means of transport, containers and other statutory inspection and quarantine materials according to law, that is, the implementation of the so-called "statutory inspection and quarantine" (also known as "compulsory inspection and quarantine"). Taking commodities as an example, in principle, the import and export commodities listed in the Catalogue of Import and Export Commodities for Inspection and Quarantine of Entry-Exit Inspection and Quarantine Institutions (collectively referred to as the “List of Laws and Inspections”) are required to go through inspection and quarantine procedures. Among them, the “Customs Supervision Conditions” listed in the catalogue indicates “A” indicates that the entry inspection and quarantine is required, and “B” indicates that the exit inspection and quarantine is required.
In addition to the goods listed in the "List of Laws and Regulations", the relevant laws and regulations also stipulate that other imported and exported goods must also be subject to inspection and quarantine. For example, for the loading and export of perishable foods, frozen containers, cabins, aircraft, vehicles and other vehicles, the performance of the inspection and use identification of export dangerous goods packaging containers, the import of solid waste that can be used as raw materials. The inspection of complete sets of equipment and old mechanical and electrical products is also within the scope of legal inspection. Finally, for import and export commodities other than statutory inspection and quarantine, the commodity inspection authorities may conduct random inspections in accordance with national regulations.
2. How is the entry and exit inspection and quarantine regulated?
(1) "National inspection service" for "closed service", vertical management has not changed!
Prior to the reform of the customs system, the former State Administration of Quality Supervision, Inspection and Quarantine was in charge of the national entry-exit inspection and quarantine work, and there were various entry-exit inspection and quarantine agencies. It is divided into direct bureaus and branch offices, and is responsible for the entry and exit inspection and quarantine work in the areas under its jurisdiction. The entry and exit inspection and quarantine institutions, like customs, also implement vertical management. That is, the direct bureau is directly under the leadership of the former General Administration of Quality Supervision, Inspection and Quarantine, and each branch is under the leadership of the immediate bureau of the region. With the reform of the customs system, the General Administration of Customs is in charge of the national entry-exit inspection and quarantine work. The original entry-exit inspection and quarantine bureaus and branch offices are respectively incorporated into the respective customs and subordinate customs. Since April 20, 2018, the entry-exit inspection and quarantine system has been unified in the name of customs, and the first-line travel inspection, inspection and window posts have been unified, uniform customs uniforms, and unified wearing of the title.
(2) The legal norm system centered on the "four laws" and "five regulations".
In view of the wide range of entry-exit inspection and quarantine operations, the laws and regulations involved are also very complicated. As far as its legal norm system is concerned, it is mainly composed of the “Four Laws” and “Five Regulations” related to entry-exit inspection and quarantine, taking into account other legal norms. The so-called "four laws" and "five regulations" refer to the "Import and Export Commodity Inspection Law" (referred to as "Commodity Inspection Law") and its implementation regulations, the "In and Out Animal and Plant Quarantine Law" (referred to as the "motion inspection law") and its implementation Regulations, the Food Safety Law (referred to as the "Food Safety Law") and its implementation regulations, the Frontier Health and Quarantine Law and its implementation rules and the Certification and Accreditation Ordinance. At the same time, it also includes the administrative regulations, rules and regulatory documents related to inspection and quarantine such as the Regulations on the Origin of Import and Export Goods. In addition, in the daily law enforcement process, the Customs may apply the laws and administrative regulations of other departments such as the Animal Husbandry Law and the Agricultural Products Quality and Safety Law according to the needs of the work.
3. What are the consequences of violating the entry and exit inspection and quarantine regulations?
(1) Administrative legal responsibility
Administrative penalties for entry-exit inspection and quarantine refer to the General Administration of Customs, customs at all levels or organizations authorized by laws and regulations to impose legal sanctions on citizens, legal persons or other organizations that violate the laws and regulations of entry-exit inspection and quarantine but have not constituted a criminal act. Administrative behavior.
1. Who is responsible for administrative punishment?
The jurisdiction of administrative punishment for entry-exit inspection and quarantine is a legal system that determines which level or which customs should impose penalties on an administrative violation. Prior to the reform of the customs system, it was mainly implemented in accordance with the relevant provisions of Chapter II of the Regulations on Administrative Punishment Procedures for Entry-Exit Inspection and Quarantine (Order No. 85 of the General Administration of Quality Supervision, Inspection and Quarantine), which was implemented on April 1, 2006. On April 28, 2018, in order to clean up the regulations that affected the legality and legality of law enforcement due to the reform as soon as possible, the General Administration of Customs issued the "Decision of the General Administration of Customs on the abolition of some regulations" (Order of the General Administration of Customs Order No. 239), Decided to abolish the procedural rules. In light of the background of the aforementioned institutional integration, we believe that the current jurisdiction of administrative violations of entry and exit inspection and quarantine shall be determined in accordance with the relevant provisions of Article 3 of the Regulations on the Implementation of Customs Administrative Penalties (State Council Order No. 420) . That is, (1) the jurisdiction of the customs that discovered the illegal act may also be subject to the jurisdiction of the place where the illegal act occurs. (2) Cases in which more than two customs have jurisdiction shall be subject to the jurisdiction of the customs that first discovered the illegal act. (3) Cases with unclear jurisdiction shall be determined by the relevant customs consultation, and if the negotiation fails, the same level of customs shall be reported to the jurisdiction. (4) Major and complicated cases may be designated by the General Administration of Customs. In addition, other issues related to the administrative law enforcement procedures for entry-exit inspection and quarantine shall also apply the specific provisions of the Customs Procedures for Administrative Punishment Cases (Order No. 218 of the General Administration of Customs) .
2. What are the administrative penalties?
The Administrative Punishment Law (Chairman's Decree No. 76) Article 8 provides for a total of seven kinds of administrative penalties, namely (1) warning, (2) fine, (3) confiscation of illegal income, confiscation of illegal property, ( 4) Order to suspend production and suspend business, (5) suspend or revoke licenses, suspend or revoke licenses, (6) administrative detention, and (7) other administrative penalties stipulated by laws and administrative regulations. The administrative penalties imposed for administrative violations that violate the entry and exit inspection and quarantine regulations include six (except administrative detention). The application of specific penalties will be introduced in subsequent articles. However, judging from the penalties, the adverse effects of any kind of punishment on import and export enterprises are very serious. For example, in the case of “illegal, altered, traded or stolen commodity inspection documents, seals, signs, seals, and quality certification marks” commonly found in the field of import and export commodity inspection, in addition to ordering corrections and confiscation of illegal income, A fine equal to or less than the value of the goods. For example, in the case of illegal activities in which the animals, plants and their products in the field of entry and exit animal and plant quarantine are unqualified by quarantine, in addition to being able to order all returns, destruction or decontamination, the customs may also cancel the relevant domestic and foreign cases, depending on the seriousness of the circumstances. Registration of production, processing and storage units. Finally, the relevant laws and regulations on entry-exit inspection and quarantine also stipulate that if the illegal act reaches the relevant criminal responsibility traceability standard, it needs to be transferred to the public security organ for criminal responsibility.
3. What impact will the violations have on personal credit?
In addition to the above-mentioned penalties, special attention is given to those business personnel and business executives who frequently travel to and from business activities at home and abroad. The original Shanghai Entry-Exit Inspection and Quarantine Bureau (now Shanghai Customs) took the lead in formulating and promulgating as early as 2017. Shanghai Port Travel and Tourism Credit Information Collection and Use Management Measures (Trial) , decided to carry out illegally carrying or mailing prohibited animals and plants to and from the inbound or outbound passengers or mailers from January 1, 2018. The illegal activities of products will be divided into “general untrustworthy behavior” (one year of default) and “serious and untrustworthy behavior” (three years of default), and provide information to Shanghai Public Credit Information Platform on a monthly basis. System "blacklist". According to relevant media reports, this will have different degrees of influence on domestic participation in government project bidding and bank loans. At the same time, it is not ruled out that the future General Administration of Customs will further promote to the national ports according to the pilot situation.
(2) Criminal legal responsibility
1. A number of criminal offences are involved.
In the "Legal Liability" section of the relevant laws and regulations on entry-exit inspection and quarantine, there will be such a provision. If a crime is constituted, criminal responsibility shall be investigated according to law. Specific crimes involving import and export commodity inspection, entry and exit animal and plant quarantine, frontier health quarantine, import and export food safety, etc. are respectively stipulated in different chapters of the Criminal Law. Common crimes mainly include “avoiding commodity inspection crimes” and “production”. "The crime of selling fake and inferior products", "crimes against animal and plant epidemic prevention, quarantine" and "criminal quarantine of border health", many of which involve unit crimes.
2. Where is the conviction standard?
There are three main differences between criminal acts that violate the entry-exit inspection and quarantine regulations and administrative violations.
(1) From a subjective point of view, it usually does not need to distinguish whether the perpetrator (including the unit) has subjective factors of intention or negligence. However, the criminal acts constituting the Criminal Law generally require subjective criminal intent. Taking the crime of “avoiding commodity inspection” as an example, the perpetrator should be subjectively aware that the goods imported and exported belong to the legal inspection goods that should be declared and accepted for inspection and quarantine according to law, and illegal means such as deliberate false registration or forgery of commodity inspection certificates are taken. Escape the commodity inspection.
(2) In terms of behavioral consequences, the crimes that constitute the crime usually require serious violations of the law or serious consequences. This is also the key to distinguishing between sin and non-sin. For example, the “criminal animal and plant quarantine crime” criminal liability filing prosecution standard clearly stipulates , evading animal and plant quarantine, suspected of one of the following circumstances, should be filed for prosecution: 1 caused by the state of the "imported animals one or two The introduction of animal diseases listed in the List of Infectious Diseases and Parasitic Diseases or other animal diseases that cause serious harm to agriculture, animal husbandry, fishery production, human health and public safety are widespread in the country; The introduction of pests listed in the Phytosanitary Pests on Entry Quarantine or other harmful organisms that pose serious harm to agriculture, forestry production, ecological environment and human health spread in the country.
(3) From the point of punishment, when the corporate behavior constitutes an administrative illegal act, usually only the enterprise bears the relevant administrative legal responsibility, but if the corporate behavior is deemed to constitute a unit crime, the “double penalty system” is implemented. That is, criminal penalties are imposed on enterprises, and criminal responsibility for directly responsible persons (usually decision makers such as chairman and general manager) and other directly responsible personnel (usually business personnel, inspectors, etc.) is also investigated. .
4. How to effectively prevent the legal risks of entry-exit inspection and quarantine?
Although the legal norms involved in entry-exit inspection and quarantine are more complicated, the impact of illegal activities on the normal production and operation activities of enterprises is also very serious. However, as long as the method is right, it should be possible to avoid major legal risks.
1. First of all, it is necessary to clearly understand the positive regulatory requirements for relevant entry-exit inspection and quarantine in light of the content and characteristics of its import and export business. For example, if a company intends to carry out food import business, it is recommended that the basic regulatory system for imported food inspection and quarantine and related formalities should be known in advance.
2. Start with actual law enforcement cases and accurately grasp the criteria for determining legal liability. In practice, many proctors in charge of procuring are difficult to accurately understand and grasp the specific meaning of the legal provisions because of the lack of legal expertise, leading to some violations that should not occur. Therefore, it is recommended to collect some law enforcement cases related to the business of the company for research, which can help to understand the relevant legal provisions more intuitively. If you have the conditions, you can also participate in some professional training or lectures, and face-to-face communication with external experts or lawyers to solve some difficult problems encountered in practice.
3. Incorporate the internal structure and business process of the enterprise, and develop a risk control system for compliance with entry and exit inspection and quarantine. In particular, for those important links or positions that may lead to major legal consequences, it is necessary to strengthen the training of relevant laws and regulations in peacetime, and continuously strengthen the legal risk awareness of relevant personnel.
4. Always pay attention to the latest developments in regulatory policies and regulations, and regularly hire external experts or lawyers to conduct “checking compliance medical examinations”. The investigation steps mainly include: (1) formulating a targeted "investigation problem and information list" according to the characteristics of the import and export business of the investigated company; (2) collecting relevant information in advance, and discussing the main potential risk points of internal discussion; (3) Conduct on-site investigations, conduct interviews with quarantine personnel, etc.; (4) Conduct legal risk analysis and produce due diligence reports; (5) propose customized solutions and risk prevention measures.
5. When there is any objection to the specific administrative actions made by the Customs and other customs, do not forget to use the administrative reconsideration or administrative litigation and other remedies to protect the rights according to law. In this regard, we caution that the “Administrative Reconsideration Measures for Entry-Exit Inspection and Quarantine” implemented on January 1, 2000 has been abolished by the General Administration of Customs on April 28, 2018. If an enterprise needs to apply for administrative reconsideration, it shall comply with The Administrative Reconsideration Law (Chairman's Decree No. 76) and the Customs Administrative Reconsideration Measures (Ordinance of the General Administration of Customs Order No. 218) , the relevant provisions of the customs that make specific administrative actions The Customs filed an application for administrative reconsideration.
Through this reform of the customs system, enterprises have fully enjoyed the policy dividends that the new customs have continuously released in promoting trade facilitation and improving administrative efficiency. However, at the same time, in terms of national security control, the Customs has increased the functions of health quarantine, animal and plant quarantine, commodity inspection, import and export food safety supervision, etc. on the basis of the original safety access (exit) and tax collection and management risk prevention and control. Information agglomeration, optimized and efficient, coordinated and unified risk prevention and control system, implement full chain management, strengthen intelligent supervision and precise supervision. It can be foreseen that in the new customs era, it is bound to put forward higher compliance requirements for enterprises in the field of entry inspection and quarantine. It is recommended that the majority of import and export enterprises give high priority to the establishment of an entry-exit inspection and quarantine legal risk prevention and control system as soon as possible.