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Amending and supplementing Decree No. 01/2015/ND-CP: Urgent isues

09:23 | 12/11/2017

VCN- For 2 years, the implementation of Decree No. 01/2015/ND-CP detailing the scope of customs operation areas; The responsibility for coordinating in prevention and combat of illegal cross-border goods smuggling and transportation has contributed to improve the efficiency of state management on the customs, to prevent, stop and handle promptly violation activities of the customs law, to improve the legislation compliance of customs declarants. However, the implementation of the Decree still revealed some obstacles, inadequacies, did not meet the requirements of reality in the past. 

amending and supplementing decree no 012015nd cp urgent isues
Over 2 years of implementation, Decree 01/2015/ND-CP has contributed to prevent and deal with promptly violations of customs law. Photo: Q.H.

The existing problems

In fact, in some customs operation areas regulated by the Decree, there are adjustments of boundaries and landmarks. Specifically, some communes and wards in some border provinces have adjusted the administrative boundaries and national landmarks such as Quang Ninh, Cao Bang, Dak Nong, Long An..., so some places and national landmarks under the Appendix issued by Decree 01 have no longer appropriate, need to amend and supplement to suit the reality.

Moreover, the permission to carry out the export and import activities through the auxiliary border gates, the openings and the export points outside customs areas is an objective reality that has not yet been defined in the area of the customs operation. Over the past time, the number of the auxiliary border gates, the trails, the openings, and the export points established by the People's Committees of provinces are large, a scope of boundaries are wide at each location.

According to the preliminary statistics in 18 provinces (Long An, Binh Phuoc, Gia Lai - Kon Tum, Kien Giang, Lao Cai, Dak Lak, Dien Bien, Lai Chau, Son La, Quang Ninh, Cao Bang, Lang Son, Ha Giang , Nghe An, Thanh Hoa, Quang Tri, Dong Thap), 93 auxiliary border gates, trails, and openings are not covered by Decree 01. Therefore, it is necessary to research and define what the auxiliary border gates, the trails, the openings are stipulated as the areas of customs control and operation to create the legal basis for the Customs to organize the forces and carry out activities to prevent and combat smuggling and illegal cross-border goods transportation effectively.

In addition, some localities have difficulty in reviewing the VAT refund when the enterprises export not via the locations stipulated as the area of customs operations in the Decree 01. The reason is that some enterprises import and export through a number of border gates not in the geographical areas of customs operation at the land border gates or inland waterway border gates that are issued together with the Appendix of Decree No. 01, these enterprises will not be refunded VAT (still withholding tax). Some comments suggested to review and study to add these border gates as the customs operation areas to ensure the interests of enterprises, meet the requirements of state management in accordance with the Customs Laws of 2014.

Some places prescribed in the new legal documents have not been synchronous, unified, so they should be identified in the areas of customs operation. The Congress passed the Law on Export Tax, Import Tax (2016) and Law on foreign trade management (2017) with many new contents such as re-definition of the non-tariff area and the specific customs area. Specifically, Clause 1 of Article 4 of the Law on Export Tax and Import Tax stipulates that the non-tariff zone: “Non-tariff zone is an economic zone located in the Vietnamese territory and is established in accordance with law, has the definite geographical boundaries separating from the outer areas by hard fences, ensuring the conditions for the customs inspection, supervision and control by the Customs offices and the relevant agencies for the export, import goods and transportation and passengers on exit and entry; The goods purchasing and exchanging relations between the non-tariff zone and the outside are the export and import relations. According to this provision, the border gate economic zones without "hard fences" separated from the outside area will not be identified as non-tariff areas such as Lao Bao Special Economic - Commercial Area (Quang Tri) and Cau Treo border gate economic zone (Ha Tinh)... Therefore, it is necessary to study and review the scope of operation in these areas to ensure that it is suitable for reality.

On the other hand, Clause 4, Article 3 of the Law on Foreign Trade Management states: "A specific customs area is a geographical area determined on the Vietnamese territory, which is established in accordance with the provisions of the Vietnamese law and the international treaties which the Socialist Republic of Vietnam is a member; Have the goods trade and exchange relations with the rest of the territory and foreign countries as the export, import relations. Therefore, it is necessary to study and add to the customs operation areas to synchronize the legal system.

Under the provisions of Clause 3, Article 7 of the Customs Law of 2014: "The Government stipulates the scope of customs operation areas in detail" and Clause 6, Article 88 of the Customs Law of 2014: "The Government stipulates the professional measures on customs control in detail; The coordinating responsibility between the agencies and the Customs offices in preventing and fighting smuggling and illegal cross-border goods transportation".

Modifying 4 articles, supplementing a new article

On the basis of the proposal of the Ministry of Finance, the Government assigned the Ministry of Finance to assume the prime responsibility for elaborating the Decree amending and supplementing a number of articles of Decree No. 01 (Official Dispatch No. 5237/VPCP-KTTH dated May 23rd, 2017). Starting from the above problems and obstacles, the Ministry of Finance assigned the General Department of Customs to assume the prime responsibility for elaborating the Decree amending and supplementing Decree 01 to overcome the existing difficulties, obstacles, and to create the overall legal framework, to apply the definition of the customs operation area uniformly; the coordination responsibility in the prevention and combat of smuggling and illegal cross-border goods transportation.

During the process of drafting the Decree, the General Department of Customs carried out the review on the Government’s implementation situation of Decree 01 in two years on the basis of reviewing and evaluating of the implementing units for the Decree. At the same time, they organize the gathering of comments on the draft Decree, the draft Statement to the Government; to publish the draft on the Government's electronic information portal, the website of the Ministry of Finance and the General Department of Customs; At the same time, to seek the written opinions of the Ministries, Branches, the People's Committees of the provinces and cities directly under the Central Government, the Vietnam Chamber of Commerce and Industry (VCCI) and collect assessment comments of the Ministry of Justice.

On that basis, the General Department of Customs synthesized and analyzed the comments for the revision of the draft Decree and the draft Statement to the Government. The draft Decree amended 4 Articles, supplemented a new Article. In the amended and supplemented contents, there were the amended contents of the scope of customs operation areas at the land border-gates, inland waterway ports in the border areas; in areas outside the border gates; The coordination responsibility in the prevention and combat of smuggling and illegal cross-border goods transportation.

Firstly, the specific scope of customs operation areas in the area of land border gates or inland waterway border gates (Article 3) shall be amended and supplemented to the extent of a number of border gates in conformity with the national landmarks, to define clearly the boundaries according to new administrative boundaries, define clearly the contiguous positions and depths of the localities; To add a number of border gates to meet the requirements of State management on the Customs.

Secondly, the specific area of customs operation in the express delivery area of export and import goods in Article 7 is consistent with Decree No. 68/2016/ND-CP and is linked to the delivery of goods under Postal Law of 2010; in areas outside the border gates (Article 8) supplement the areas at the “re-processing units” to comply with Articles 59 and 60 of the Customs Law of 2014; "Separate Customs Areas" in accordance with the Foreign Trade Administration Act of 2017 and the "Non-tariff Zone" in accordance with the Law on Export Taxes and Import Duties in 2016.

Thirdly, in coordinating in the prevention and combat of smuggling and illegal cross-border goods transportation, they supplement the dossier preparation work in Article 11 and Article 15 of the Decree, the propagation and dissemination of policies and legislation in Article 15a of the Decree in accordance with Article 89 of the Customs Law of 2014.

The formulation of the Decree amending and supplementing Decree 01 must ensure some criteria:

- Ensuring the constitutionality, legality and consistency of legal documents in the legal system.

- Ensuring compliance with the Customs Law of 2014 and relevant current legal documents.

- Ensuring the feasibility, thriftiness, effectiveness, promptitude and easy implementation of legal documents; Ensuring the requirements of administrative procedure reform.

- Ensuring defense and security requirements and not hindering the implementation of treaties which the Socialist Republic of Vietnam is a contracting party.

- Ensuring publicity and democracy in the receipt and feedback of opinions and proposals of the individuals, the agencies and the organizations in the course of formulating and promulgating legal documents.

By Pham Van Bang /Binh Minh