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The General Department of Vietnam Customs issued the internal guideline on processes and procedures of administrative litigation at administrative Court of the Customs agents to Customs officers understand and carefully prepare relevant problems before issuing a fine decision and protect their opinion at the Administrative Court. It is considered efforts of the General Department of Vietnam Customs in completing legal framework as well as handling of administrative litigation at the Court in the field of Customs in reality.
In the recent 5 years, nearly 60 cases of administrative litigation arisen in the entire Customs. This litigation related to many different areas but mainly in administrative decisions in implementing Customs procedures, inspection, supervision, and control.
Handle results of the Court in the recent times have shown that the number of litigation has increased, and cases which administrative decision of the Customs are abolished by the Court has decreased. The administrative decisions on applying goods code and determining tax rate have always been litigated by businesses (accounting for 40-60% of arising cases).
In period 2014-2016, arising nearly 50% of business’ litigation with administrative decisions of the Customs related to goods code determination and Customs value. Typically, Truong Giang Electric Joint Stock Company litigated about notice and conclusion of Da Nang Customs Department to the Da Nang administrative Court; Nam Thang Trading and Service Co., Ltd litigated about decision on imposing tax issued by Ho Chi Minh Customs Department; Quang Toan Nam Dinh Co., Ltd litigated about decision on imposing tax issued by Nam Dinh Customs Branch due to violation of administrative document form and regulations on applying legal normative document of Law on Promulgation of normative legal documents.
Compared to the statistics on administrative penalty (average each year from 12,000 to 13,000 decisions issued by Customs), the number of litigation to the Court is not much, accounting for 0.008%).
In the first 6 months of 2017, Vietnam Customs issued 5 documents guiding to local Customs Departments on administrative litigation to handle each specific case. Focusing on guiding An Giang Customs Department for the case of litigating about the decision on administrative penalty of the Chairman of the An Giang People's Committee in the field Customs; Guiding Quang Nam Customs Department for the case of business litigating about the decision on imposing a tax of the Director of Quang Nam Customs Department and etc.
According to Vietnam Customs, by summarizing, classifying and determining reasons for individuals and organizations litigating to the Court, it is realized that some cases which litigate about decisions of Customs agencies were inconsistent with the form of administrative documents and violated regulations on applying normative legal documents under the Law on Promulgation of legal normative documents. Errors in operational activities of Customs officers are also the reasons leading to litigation at the administrative court. Another reason is that import and export goods have many tariff lines with many different tax rates, even the large difference between commodity groups which are relatively similar in composition, nature, and use, so it is difficult to determine the exact code.
The representative of Legal Department of Vietnam Customs said that through participating in some litigation in the courts, he realized that when receiving notice on handling of the Court, the Customs need to check operational steps from the process of arising case, proposing and initially setting up dossier to the process of handling dossier and issuing decision, reviewing and comparing with provisions of the law to detect negligence or error. Evaluating case to revise and annual decision, and negotiate with litigator or prepare a dossier and opinion on the content of litigation and requirements of the litigator.
In order to equip skills for Customs officers who are assigned to participate in administrative litigation at the court in cases of administrative violation, Vietnam Customs issued the internal guideline on the processes and procedures of administrative litigation at the Administrative Court of the Customs which was issued together with Decision 2587/QD-TCHQ and took effect from 28 July, 2017 to replace Decision 2901/QD-TCHQ dated October 1, 2014. This guideline provides detailed guidelines related to an administrative case, power, and duty of Customs.
According to the representative, through summarizing the implementation of Decision 2901/QĐ-TCHQ dated October 1, 2014 of the Director General of Vietnam Customs, it is shown that a number of contents of the Decision are not consistent with new provisions of the Law on Administrative procedures, Law on Customs, Law on Complaints and Resolution No. 02 /2016/NQ-HDTP dated June 30, 2016 of the Council of Judges of the Supreme People's Court guiding the implementation of a number of provisions of the Civil Procedure Code and Law on Administrative Procedures .
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Studying Civil Procedure Code, Law on Administrative procedures, Law on Customs, Law on Complaints, Resolution No.02/2016/NQ-HDTP and Resolution 104/2015/QH13 of the National Assembly, the Legal Department said that these documents still remain provisions in line with the Ordinance on Procedures for the Settlement of Administrative Cases, and supplement some new provisions which directly affect the rights and obligations of organizations and individuals participating in administrative litigation. Therefore, the internal guideline of Vietnam Customs issued together with Decision 2587/QD-TCHQ will stipulate in detail problems related to an administrative case which needs to be known by Customs officer.
Accordingly, the processes and procedures of administrative litigation at the Court of the Customs include the process of preparing, participating in the first instance and appellate procedures of an administrative case; participating in procedures of cassation and retrial and executing judgment and decision of the Court.
Besides, equipping skills and knowledge above, some experienced Customs officers said that the most important thing in performing the tasks is that procedures and process must be correctly implemented from the first step. Because administrative cases relate to many sectors and areas, only a small mistake will become weaknesses at the administrative court. Therefore, it is not easy to carry out in line with the process, so the procedures must be carefully carried out.
By Dao Le/Ngoc Loan