December 18, 2017 23:42

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Handling of administrative violations on Customs: difficult for implementation in the reality

20:24 | 24/11/2017

VCN - Administrative violations on customs tend to increase with tens of thousands of cases being detected annually. This situation not only directly affects import, export and transit activities but also implies the risk of tax losses to the state budget. However, some regulations of the Law on handling administrative violations are unclear and inconsistent with the reality, which makes it difficult for Customs in implementation.

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Customs officers at Ha Nam Customs (Ha Nam Ninh Customs Department) guided enterprises Customs procedures. Photos: H.Nu

According to the Legal Department under the General Department of Vietnam Customs (GDVC), through inspection and self- inspection from the Ministry of Finance, the GDVC to the provincial and municipal Customs departments and through the coordination with other competent authorities, over the past time, tens of thousands of violations were discovered each year. Specifically, in the years 2013, 2014, 2015 were 21,200 cases, 18,448 cases, 18,448 cases respectively.

In 2016, although the total number of violations reduced to 15,489 cases, the total value of infringing goods amounted to more than 416 billion VND. In the first 6 months of 2017, the Customs detected and handled 8,032 cases of which 3,466 violation cases of Customs procedures; 106 violation cases of Customs control; 2,458 violation cases of incorrect tax declaration, tax evasion, and tax fraud; 165 violation cases of product policy and 1,532 other violation cases.

Over the past years, the handling of administrative violations has been fully and comprehensively implemented by all units in the whole Customs sector. Many units have realized the requirements and importance of this work, and have actively gathered problems, organized professional training to improve the professional capacity on the handling of administrative violations and the participation in proceedings at the Court.

The detection of law violations, the preparation of dossiers for handling the cases basically has been implemented by units in a timely and effective manner and in compliance with the law on the handling of violations in term of power, fines and legal basis in administrative decisions in full and strict manner.

According to the GDVC, although the number of detected violations is always at a high level, the handling of administrative violations faces many difficulties related to the principles, power, order, procedures of sanction.

Specifically, some of the regulations on the Law on the handling of administrative violations are unclear and inconsistent with the reality, which makes it difficult for implementation. The GDVC said that the principle of sanctioning "A person who performs multiple acts of administrative violation or engages in administrative violation much time shall be sanctioned for each act of violation”. However, this regulation does not clarify the case “administrative violation many times", the sanction will be applied for each time or only one sanction with aggravating circumstances “violation many times" will be applied. Therefore, it may lead to a lack of consistency. Moreover, the determination of aggravating circumstances for administrative violations with large scale, large quantity or value of goods is difficult because there is no basis to determine.

In addition, the regulation on the power of exhibit confiscation is restricted by the power of fine, causing many difficulties for sanction for cases beyond the power of Directors of municipal and provincial Customs Department, the Anti-Smuggling Investigation Department and the Post Clearance Audit Department.

Law on handling administrative violations as well as Decree 81/2013 / ND-CP dated 19 July 2013, which have been supplemented and amended in Decree 97/2017 / ND-CP detailing some articles and measures to implement the Law on handling administrative violations, has not dealt with obstacles relating to determination of violated exhibit value as basis for determining the financial penalty framework and the sanctioning competence for some goods on the list of goods banned from import (firecrackers, violent toys) or goods under the list in the Cites management (ivory, rhinoceros horns ...)

Similarly, the regulations on order and procedures of sanctioning; public announcement of the administrative violation; and measures to prevent and ensure the handling of administrative violations have also many restrictions that make it difficult to apply in the reality.

Moreover, the reports from the provincial and municipal Customs departments and the inspection of handling administrative violations in the whole sector showed that there were still some limitations and confusion in the implementation such as: skills to detect violations, identify acts of violations; skill to make the administrative violation record; identifying the documents to be applied in the decision making process and determining the sanctioning competence and making case dossiers.

To solve difficulties and obstacles in handling administrative violations of Customs and improving capacity for officers in charge of handling administrative violations in general and officers in charge of handling administrative violations on Customs in particular, the GDVC proposed that first of all, in terms of mechanisms and policies, the Ministry of Justice should consider and propose competent agencies to soon amend the regulations of Law on handling administrative violations, which are inconsistent with the reality and obstruct the implementation. At the same time, answering questions on the regulations of the Law on handling administrative violations and documents detailing the implementation.

In terms of organizing and improving the capacity of officers in charge of handling administrative violations, the GDVC, as well as the units in charge of on handling administrative violations, regularly organize advanced training courses on handling administrative violations; common situations in the handling of administrative violations in different fields for the unit to learn together and draw experience.

The authorized levels of the handling of administrative violations must review and develop a plan to arrange the organizational system and officers working as consultants to handle in accordance with the work’s requirements. Recruiting officers who are qualified and have good knowledge of the law, operation, and experience in the reality to undertake the handling of administrative violations.

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Frequently propagating and publicizing on the mass media as well as through other forms of direct propaganda to help businesses and individuals know the legal regulation on the handling of administrative violations is also one of the important measures which will be promoted by Customs in the coming time.

Ms. Tong Thi Thanh Nam, Deputy Director of Hanoi Legal Department:

On the basis of the summary outcomes of the Law on handling administrative violations, the Ministry of Justice was proposed to soon suggest the Government to submit to the National Assembly amendments and supplements to the Law in order to overcome the existing problems in the reality. At the same time, enhancing seminars and advanced training courses for officers in charge of state management on handling administrative violations and sanctioning administrative violations for localities; boosting inspection for law enforcement on handling administrative violations, thereby promptly correcting errors of the localities.

For forms of propagation, education and dissemination of law in order to raise people's awareness, and compliance of the law, operational training on handling administrative violations should be carried out regularly and professionally, especially skills, research and application of law to deal with specific dossiers and cases on handling administrative violations.

Mr. Tran Ngoc Duong, Department of Legislation and Administrative Reform, Ministry of Public Security:

The subjects of the administrative handling measure coincide with the objects of the Criminal Code, such as a petty theft causing public disorder , who has been subject to the measure of education at communes and wards, still commit violations will be subject to criminal prosecution, while this is also subject to the application of measures to send to reformatory schools or compulsory education establishments.

It is recommended to review the regulation on the subject of administrative handling measures in accordance with the provisions of the Penal Code. At present, a number of perpetrators who are eligible for making application and decision on applying measures of sending to reformatory schools or compulsory education establishments and compulsory rehabilitation establishments is very large. However, the actual application of these measures did not meet the requirements on preventing law violations because, in the process of making dossier and decision on applying these measures, these perpetrators had left their residence or social protection establishments. Therefore, it is required to supplement the regulations by providing sufficient human resource, conditions, and power to agencies to apply coercive measures to manage them during this time.

Le Bui (Recorded)

By Hong Nu/ Huyen Trang