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Introduction
The relevance of the research topic lies in the fact that in modern conditions the procedure for moving goods and vehicles across the customs border is characterized as permissive, not notification. In this regard, the role of customs authorities as controlling entities increases, and also acquires special significance in their law enforcement activities. It is on the basis of customs control that crimes and other violations of customs legislation can be detected. At the same time, customs control is an effective means of preventing them. Considering that the majority of violations of customs rules have the ultimate goal of evading customs payments or underestimating their size, customs control acts as a barrier that does not allow the “leakage” of funds intended to form the revenue side of the state budget. One of the directions for the implementation of customs policy is the effective use of customs control tools.
According to the legislation of the Russian Federation, “customs control is a set of measures carried out by the customs authorities of Russia in order to ensure compliance with customs legislation. Control has always been an activity, the content of which is to check the compliance of the state of the controlled object with the provisions regulated by regulatory legal acts.
Also, the significance of this study is very important, also because all goods transported across the border of the Russian Federation are subject to customs control. Even if the subjects of foreign economic activity are granted privileges for the payment of customs duties under the simplified procedure for customs clearance (for example, the use by individuals of the "green corridor" at the border crossing point), customs control should be carried out. However, the customs authorities subject to customs control not only imported and exported items. The objects of customs control are goods and vehicles transported across the customs border in accompanied and unaccompanied baggage, including international postal items; documents containing information about goods and vehicles; activities of persons as customs brokers, customs carriers, owners of temporary storage warehouses, customs warehouses, duty-free shops; compliance with established restrictions on the use and disposal of goods; payment of customs duties.
In exceptional cases (during a personal inspection), an individual crossing the border of the Russian Federation may act as an object of customs control.
The objectives of customs control are: “protection of state and public security, economic interests of Russia; protection of public order; identification and suppression of offenses and crimes in the field of customs; prevention of unlawful acts of subjects of foreign economic relations; protection of legal rights and interests of individuals and legal entities; assistance in the fight against international terrorism”. All of the above emphasizes the relevance of the study.
The object of the study is a complex of legal relations that develop in the process of applying the rules of law governing the activities of customs control bodies.
The subject of the study is a set of norms of modern Russian customs legislation, judicial practice, theoretical and scientific views and developments related to increasing efficiency and ways to improve customs control.
The purpose of the work is the legal analysis of customs control in the system of administrative procedures of the customs business; its effectiveness and ways to improve.
To achieve this goal, it is necessary to solve the following tasks:
1. Study the general provisions related to customs control.
2. Analyze the forms and procedure for customs control.
3. Consider the organization and procedure for conducting examinations and studies in the implementation of customs control.
4. Explore the characteristics of additional provisions related to customs control.
5. Disclose the nature of the measures taken by the customs authorities in relation to individual goods.
6. Analyze the effectiveness of customs control as an administrative procedure in the customs business.
7. Draw conclusions and make suggestions on the research topic.
The methodological base of the research is made up of the following methods: analysis, synthesis, systemic and functional approaches, comparative legal, formal legal, statistical, historical, concrete sociological, etc.
The work consists of an introduction, two chapters and a conclusion.
The introduction reveals the relevance of the chosen topic, defines the object, subject, purpose of the work. To achieve this goal, certain tasks are set.
Chapter one "The concept and general characteristics of customs control as one of the types of customs procedures" reveals the general provisions related to customs control; studies the forms and procedure for conducting customs control; examines the organization and procedure for conducting examinations and studies in the implementation of customs control.
The second chapter "Customs control as a special customs procedure" reveals the characteristics of additional provisions related to customs control; analyzes the measures taken by the customs authorities in relation to individual goods; the effectiveness of customs control as an administrative procedure of customs is studied.
The conclusion of the work is the main conclusions and proposals on the research topic with rational options for solving the identified problems.
During the study, it is planned to study in detail the normative legal acts regulating relations in the field of customs control, as well as to analyze the works of legal scholars such as A.V. Agrashenkov, A.B. Novikov, A.V. Shamakhov, B.N. Gabrichidze, A.G. Chernyavsky, M.V. Vanin, D.N. Bahrakh, T.A. Dikanova, V.E. Osipov, V.M. Manokhin, Yu.N. Starilov, B.V. Zdravomyslova, R.A. Shepenko, B.N. Topornin, V.G. Khrabskov, A.N. Kozyrin, A.D. Ershov and others.
1. The concept and general characteristics of customs control as one of the types of customs procedures
1.1 General provisions relating to customs control
Customs control is one of the main institutions of customs law. Currently, in connection with the adoption of the new Customs Code, the procedure for moving goods and vehicles across the customs border of the Russian Federation has been changed from notification to permissive (for example, the customs regime is declared by an interested person, but approved by the customs authority).
The legislation of the Russian Federation provides for several options for communicating with regulatory authorities. Distinguish such as permissive and notifying. By notification, it is meant the submission to the regulatory authorities (bank, tax office, antimonopoly committee, etc.) of any statements or letters without further waiting for the consent or disagreement of the recipient. Permissive is an “administrative measure of a coercive nature aimed at protecting constitutional values, such as the sovereignty and economic security of the Russian Federation, the rights and legitimate interests of citizens, the legitimate interests of domestic producers and consumers, human life and health, the natural environment, etc., which itself in itself cannot be considered as an unacceptable restriction of constitutional rights and freedoms and does not violate the requirements of the Constitution of the Russian Federation.
The legal regulation of the implementation of customs control is enshrined in Section IV of the Customs Code of the Russian Federation, as well as Decrees of the Government of the Russian Federation, and departmental documents of the Federal Customs Service of Russia (hereinafter referred to as the FCS of the Russian Federation), and earlier - documents of the State Customs Committee of Russia (hereinafter referred to as the State Customs Committee of the Russian Federation), published in development of the norms established by the Customs Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). The procedure for exercising customs control by the customs authorities may also be established by Decrees of the President of the Russian Federation.
According to the Labor Code of the Russian Federation, "customs control is a set of measures carried out by customs authorities in order to ensure compliance with the customs legislation of the Russian Federation."
New approaches to the implementation of customs control are expressed as follows - the customs code provides for the maximum simplification of formalities related to the movement of goods across the customs border, simplification and reduction of customs clearance time so that goods can freely enter circulation and be used in accordance with the purpose of their importation.
At the same time, customs control is limited to a minimum of measures aimed mainly at observing the prohibitions and restrictions established by the legislation on state regulation of foreign trade activities. The emphasis is on the following main areas:
Carrying out checks after the release of goods;
Concentration of control on goods, the movement of which across the customs border is the most sensitive for the economy of the Russian Federation (risk analysis and management system);
Transferring control from the actual inspection of goods to control of information about them.
The objectives of customs control are:
Ensuring compliance by FEA participants with the norms of customs, tax, administrative, criminal legislation;
Protection of state and public security, economic interests of Russia;
Protection of public order;
Identification of the suppression of offenses and crimes in the field of customs;
Prevention of illegal acts of subjects of foreign economic relations;
Protection of the legitimate rights and interests of individuals and legal entities;
Assistance in the fight against international terrorism.
Customs control is distinguished in certain areas.
Thus, the effect of customs control in time varies depending on the nature of foreign trade deal. Goods and vehicles imported into the customs territory of the Russian Federation are considered to be under customs control from the moment they cross the customs border upon their arrival in the customs territory of the Russian Federation and until the moment:
Release for free circulation;
destruction;
Refusal in favor of the state;
Turning goods into federal ownership or disposing of them in any other way;
Actual export of goods and vehicles from the customs territory.
The use and disposal of imported goods and vehicles under customs control are allowed in the manner and on the terms determined by the Labor Code.
Russian goods and vehicles are considered to be under customs control when they are exported from the customs territory of the Russian Federation from the moment the customs declaration is accepted or actions are taken that are directly aimed at exporting goods from the customs territory of the Russian Federation and until crossing the customs border.
The customs authorities exercise control over the fulfillment of the obligations of persons on the re-import of Russian goods and vehicles previously exported from the customs territory of the Russian Federation or on the re-import of their processed products in accordance with the conditions of the customs regimes in the manner prescribed by Section IV of the Labor Code, if such goods (processed products) are subject to mandatory re-importation in accordance with the legislation of the Russian Federation.
As a rule, customs control is completed at the time of release of goods and vehicles. If there are grounds to believe that Russian legislation or the terms of an international treaty have been violated, customs control may be carried out after the release of goods. At the same time, the customs authorities verify the authenticity of the declared customs clearance information. Such a check, according to Part 2 of Art. 361 of the Labor Code, can be carried out by the customs authorities within one year from the date of loss of the status of goods under customs control. Customs control after release is carried out by a commission consisting of customs officers, and, if necessary, other officials of federal executive authorities (for example, the Antimonopoly Service, the Ministry of Finance, the Ministry of Economy, etc.).
The implementation of customs control implies the presence of a certain place where it is carried out. Such places are customs control zones. The customs control zone is a part of the territory of the Russian Federation, which is isolated in accordance with the procedure established by the customs legislation of the Russian Federation for the purpose of carrying out measures on it aimed at ensuring compliance with the requirements of customs legislation. Customs control zones are created at places of customs clearance, customs operations, at places of reloading of goods, their inspection and inspection, and other places determined by the Customs Code. So, under customs control, the goods are in temporary storage warehouses, free and customs warehouses, duty-free shops, in the free customs zone. In accordance with Part 2 of Art. 362 TC implementation of production and other commercial activities, movement of goods, vehicles, persons, including officials of other government agencies, across the boundaries of such zones and within them are allowed only with the permission of the customs authorities and under their supervision.
Customs control zones are divided into permanent and temporary. They are permanent in cases of regular presence in them of goods subject to customs control (customs warehouses, temporary storage warehouses, duty-free shops, etc.). Temporary customs control zones are formed if it is necessary to carry out certain forms of customs control at the place of their discovery. They are created for the duration of a certain operation by decision of the head of the customs authority or a person replacing him. For example, a compartment of a train, in which a personal search of a citizen is carried out, can become a temporary zone of customs control. The main means of designating the customs control zone are rectangular signs, on a green background of which there is an inscription in Russian and, as a rule, in English "Customs control zone" ("Customs co№trol zo№e"). Goods can only be checked in customs control zones.
Each state carries out control activities through a system of authorized bodies. At the same time, “control activity falls within the competence of almost any state body as one of its functions.”
The subjects of customs control are:
customs authorities and their officials;
Entities moving goods across the border and persons providing them with contractual services (customs broker, customs carrier);
Persons assisting in customs control (specialists, witnesses, experts, medical workers).
Participants of customs control, like all subjects of customs law, can be collective and individual. Legal status of the above participants in the process of customs control is different. In customs, functions of this kind are carried out by the departments of customs clearance and customs control. E.Yu. Gracheva defines the subjects of the control relationship as "leading" and "ordinary" participants in the process. The relationship of the participants here is built on the basis of subordination, which implies the absence of legal equality of the parties.
Employees of the customs authority exercising customs control are entitled to conduct an oral questioning of individuals moving goods across the customs border of the Russian Federation; check the information declared in the customs declaration; demand the submission of other documents and information necessary for customs control and clearance, and verify them; carry out customs inspection; use in the implementation of customs control technical means that are safe for the life and health of citizens, animals and plants and do not cause damage to goods. In addition, they have the right to receive, in the prescribed manner, information and materials necessary for the execution official duties, as well as combat small arms and edged weapons in the manner and cases provided for by the Customs Code.
“The duties of customs officers in the process of customs control include:
Ensuring compliance with the legislation of the Russian Federation on customs affairs and other legislation, the control over the implementation of which is entrusted to the Russian customs authorities;
Fulfillment of orders and orders of the heads of customs authorities, given within their official powers, with the exception of obviously illegal ones;
Compliance with the established rules of internal labor regulations, the procedure for handling official information, the implementation job descriptions;
Maintaining the level of qualifications necessary for the performance of official duties;
Keeping state and other secrets protected by law, as well as non-disclosure of information that became known to them in connection with the use of official duties, including those affecting the private life, honor and dignity of citizens;
Fulfillment of other obligations stipulated by the legislation of the Russian Federation.
The implementation of customs control is based on a system of special principles, namely:
1. The principle of legality, which means that all actions of customs control participants should not contradict the customs and other legislation of the Russian Federation, as well as international legal norms. Customs authorities are required to adhere to the postulate "everything that is not permitted by law is prohibited."
2. The principle of respect for the rights and freedoms of subjects of foreign economic activity, which is expressed in respect for the legitimate interests of controlled entities by customs officials. In the process of customs control, actions aimed at humiliating human dignity are not allowed. In addition, customs officials should not cause unlawful harm to persons, their goods and vehicles during customs control (for example, during administrative detention. “This principle is of particular importance for the legal regulation of such an exclusive customs procedure as a personal search”). Otherwise, they are held accountable. So, in accordance with Part 2 of Art. 365 of the Labor Code, losses caused by unlawful decisions, actions (inaction) of the customs authorities or their officials during customs control are subject to compensation in full, including lost profits (lost income). In the event that they commit lawful actions, losses are not subject to compensation.
3. The principle of selectivity of customs control, which is the use by officials of only those forms that are sufficient to ensure compliance with the legislation of the Russian Federation. That is, an official of the customs authority has the right to choose in which direction he will carry out customs control (for example, whether it will be an inspection of goods and vehicles or their inspection). However, the non-use of other forms of control or exemption from them does not mean that the subjects of foreign economic activity may not comply with the requirements established by regulatory enactments.
4. The principle of humanity, which means the possibility of using only those technical means which are safe for the life and health of humans, animals and plants, and also do not cause damage to goods, vehicles, persons (for example: illuminated magnifiers, microscopes are used to check customs documents; various types of audio players and voice recorders are used to control audiovisual information carriers; for remote acquisition of information about the contents of customs control objects, search and detection of contraband objects - inspection conveyor X-ray television devices, metal detectors and metal detectors, etc.).
5. The principle of promptness, which consists in the establishment by the State Customs Committee of the Russian Federation of relatively short periods for the production of all forms of customs control (for example, "terms for checking the customs declaration, other documents and goods during customs clearance, as well as checking goods in order to establish compliance with the information specified in the customs declaration, other documents, name, origin, quantity and value of goods must be completed no later than three working days from the date of acceptance by the customs authority of the customs declaration, submission of documents and presentation of goods”).
6. The principle of cooperation with the customs authorities of foreign countries, which involves the interaction of Russian customs authorities with the customs services of partner countries through joint activities to identify and prevent illegal acts of subjects of foreign economic activity, conclude agreements with them on mutual assistance, inform and consult on certain problems ( for example, "joint customs control, which takes place in the case of customs inspection carried out simultaneously by customs officers of both states").
7. The principle of efficiency, which consists in the fact that the customs authorities seek to interact with participants in foreign economic activity, carriers and other organizations whose activities are related to the implementation of foreign trade in goods, and their professional associations (associations). For example, in addition to the Federal Assembly, the President, the Government and the State Customs Committee of the Russian Federation, the Central Bank, the Ministry of Finance, the Ministry of Economy, the Ministry of Trade, the Ministry of Taxes and Duties, etc. take an active part in the formation of customs law.
Customs control is a set of measures carried out by the customs authorities in order to ensure compliance with the customs legislation of the Russian Federation.
Customs control differs in certain areas. The effect of customs control in time varies depending on the nature of the foreign trade transaction. When importing, customs control begins from the moment the goods and vehicles cross the customs border of the Russian Federation, and when exporting, from the moment the customs declaration is accepted.
The implementation of customs control implies the presence of a certain place where it is carried out. Such places are customs control zones. They are created at the places of customs clearance, customs operations, at the places of reloading of goods, their inspection and inspection, and other places determined by the Customs Code. Customs control zones are divided into permanent and temporary.
The subjects of customs control are the customs authorities and their officials; entities moving goods across the border, and persons providing them with contractual services (customs brokers and customs carriers); persons assisting in customs control (specialists, experts, medical workers).
Participants of customs control can be collective and individual.
The implementation of customs control is based on a system of special principles: legality; respect for the rights and freedoms of subjects of foreign economic activity; selectivity of customs control; humanity; efficiency; cooperation with customs authorities of foreign states; efficiency.
When choosing forms of customs control, a risk management system is used.
Having studied the general provisions related to customs control, it is further necessary to analyze the forms and procedure for conducting customs control, which is the subject of the next subsection of the study.
1.2 Forms and procedure for customs control
The implementation of customs control involves the use by customs officials of its various forms. “Under the form of customs control is understood the direction of activity of an official of the customs authority, including the use of certain methods, means and methods in order to verify compliance by subjects FEA customs legislation of the Russian Federation.
1. verification of documents and information;
2. oral questioning;
3. receiving explanations;
4. customs supervision;
5. customs inspection of goods and vehicles;
6. customs inspection of goods and vehicles;
7. personal search;
8. checking the labeling of goods with special marks, the presence of identification marks on them;
9. inspection of premises and territories;
1. Verification of documents and information involves the implementation of documentary control by the customs authorities. As a rule, it precedes the inspection of goods and vehicles. Documents to be checked include: customs documents - documents drawn up exclusively for customs purposes (customs declarations, delivery control documents, etc.); commercial documents - documents used, as a rule, to confirm the completion of foreign trade transactions (contracts, invoices, shipping and packing lists, specifications, etc.); transport documents- documents confirming the existence and content of the contract for the carriage of goods and accompanying goods and vehicles in international transportation (waybills, bills of lading, etc.); other documents required for customs control ( founding documents, various certificates, etc.).
The customs authority requests in writing the documents and information necessary for customs control, as well as sets a period sufficient for their submission. Banks and other credit organizations submit to the customs authorities certificates of operations related to foreign trade activities of foreign trade entities and the payment of customs duties by them. “In order to verify the accuracy of information after the release of goods, the customs authorities have the right to request and receive commercial documents, documents accounting and reporting and other information related both to the sphere of foreign trade and to subsequent operations with imported goods. Such information may be provided in electronic form.
Documents submitted to the customs authority for verification must be authentic and have reliable information, must be correctly legally executed. Officials of the customs authority who have accepted the documents carefully check them on the basis of customs legislation and other regulatory acts, as well as using special technical means (observing magnifier, microscope, ultraviolet lamp and other technical devices). The accuracy of information can also be verified by a request to any other law enforcement, tax or other regulatory body of the Russian Federation, as well as to the body that registers legal entities.
Documents required for customs control must be kept by persons for at least three calendar years after a year during which the goods lose their status under customs control. Customs brokers, customs carriers, owners of temporary storage warehouses and customs warehouses keep documents for five calendar years after the year during which customs operations were performed.
2. One of the forms of customs control is an oral survey, which is carried out in relation to individuals and is carried out during customs clearance. In addition, the interviewed persons include representatives of organizations that have authority in relation to the transported goods. When conducting inspections of the intended use of conditionally released goods, in respect of which customs payment privileges are granted, the customs authorities also practice oral questioning of officials of the inspected entity, as well as the final recipients of goods.
In the course of this form of control, the official of the customs authority determines a list of issues that need to be clarified in order to verify the presence or absence of violations of current legislation. Explanations of the interrogated persons are not made out in writing.
Oral questioning should be distinguished from such a form of customs control as obtaining explanations.
3. Obtaining clarifications means that in the course of implementation, an official of the customs body receives information about the circumstances that are important for the conduct of customs control. In this case, controlled entities are persons related to the movement of goods and vehicles across the customs border and who have such information (declarants, customs brokers, other parts of the customs infrastructure). Explanations are made in writing.
4. Customs surveillance is characterized "as a visual observation by authorized officials of the customs authorities of the transportation of goods and vehicles under customs control, the performance of cargo and other operations with them." Mandatory features of this form of control are publicity and purposefulness. Depending on specific situations, customs supervision can be carried out both in a systematic form and at a time. Customs officials carry out observation directly or with the use of technical means (for example, for visual observation of the operational situation in the customs control zones, radar-type equipment is used, combined with technical means of optical-television surveillance).
5. Customs inspection of goods and vehicles, in accordance with Art. 371 of the Labor Code, means an external visual inspection of goods, luggage of individuals, vehicles, cargo containers, customs seals, seals and other means of identifying goods for the purposes of customs control. It is carried out by authorized officials of the customs authority. It differs from customs inspection in that it is not associated with the opening of a vehicle or its cargo spaces and violation of the packaging of goods. Presence during customs inspection is a right, not an obligation of a controlled person.
If, during this form of control, the fact of an incorrectly indicated quantity of goods is established, when declaring them, the customs authority independently determines the quantity of goods.
The results of the customs inspection of goods and vehicles are recorded by officials of the customs authorities in the act. At the request of a person having authority in relation to goods and vehicles, officials of the customs authority are obliged to draw up an act or put a note on the fact of a customs inspection on the transport (transportation) document held by the person. The second copy of the act on the customs inspection is handed over to the person who has the authority in relation to goods and (or) vehicles. Currently, the form of the act established by the annex to the order of the State Customs Committee of Russia of October 20, 2003 No. 1166 “On the forms of acts of customs inspection (inspection) of goods and vehicles” is used (registered by the Ministry of Justice of Russia of November 13, 2003, reg. No. 5236).
Customs inspection of goods and vehicles is used, for example, at the completion of the customs procedure for internal customs transit, as a form of customs control during a special customs audit (paragraph 3 of clause 4 of article 376 of the Labor Code of the Russian Federation).
Inspection is the stage preceding inspection.
6. Customs inspection of goods and vehicles includes verification actions in relation to goods and vehicles aimed at establishing by officials of the customs authority the reliability of the information necessary for customs purposes, identifying offenses in the field of customs, as well as determining the characteristics of goods in order to ensure compliance with the customs Russian legislation. This form of control is more common in the field of customs. It is carried out after the acceptance of the customs declaration for the goods. Prior to filing a declaration, customs control may be carried out to identify goods or if there is information about a violation of the customs legislation of the Russian Federation in order to verify it. The law also allows for selective testing. The legal basis for conducting customs inspections is established by order of the State Customs Committee of the Russian Federation.
Customs inspection is associated with the removal of seals, seals and other means of identifying goods, opening the packaging of goods or the cargo space of a vehicle or containers, containers and other places where goods are or may be located. One of the tasks of the search is to find caches, places where objects can be hidden. For this purpose, probing, piercing, disassembling structural parts, components and assemblies, violating the integrity of the entire or part of the object, etc. are used.
Customs inspection can be basic, repeated and directed. The main inspection is carried out taking into account the requirements of regulatory legal acts of the State Customs Committee, the scope and degree of inspection established by the order for inspection, information about the nature of the goods established during preliminary operations, other information about goods and vehicles, as well as became known during their inspection. A second inspection is carried out to verify information about goods and vehicles obtained as a result of the main inspection, and (or) to control the results of the main customs clearance, as well as compliance with the requirements of the normative legal acts of the State Customs Committee by the customs officers who conducted the main inspection. A directed inspection is carried out if there is information or reason to believe that goods are being moved across the customs border of the Russian Federation that are prohibited or restricted for import and export, or the movement of goods through the customs territory of the Russian Federation is carried out with concealment from customs control. Directed inspection can be carried out both independently and simultaneously with the main or repeated inspection.
7. Personal inspection - "an exclusive form of customs control." The legal basis for its implementation is established by the Customs Code and the Order of the State Customs Committee of the Russian Federation. Carrying out a personal search to a certain extent is connected with the restriction of the rights and freedoms of a citizen, therefore, the decision on its implementation is made by the head of the customs authority or an official replacing him, by imposing a resolution on the customs declaration filed by an individual, or on the report of an official of the customs authority. Such a decision may also be formalized in a separate act. A prerequisite for this should be an indication of a specific official who is entrusted with conducting a personal search.
“A personal search may be carried out if there are grounds to believe that a citizen hides with him and voluntarily does not give out items that are the objects of an offense and a crime. Such grounds are: the relevant information contained in the messages of Russian and foreign persons, materials of customs and other law enforcement and state bodies of the Russian Federation and foreign states, international organizations; direct detection by officials of the customs authority of any signs that directly or indirectly indicate that an individual hides with him and does not give out goods.
A personal search involves the examination of things, clothes and the body of an individual, and, if necessary, their examination. The implementation of this form of control should be carried out in a correct form, excluding the humiliation of personal dignity and the infliction of unlawful harm to the health and property of a person.
The place for conducting a personal search is an isolated room that meets sanitary and hygienic requirements, in the absence of surveillance by unauthorized persons. Doors to adjacent rooms, windows, portholes must be locked; Items that can be used as offensive weapons have been removed.
During a personal search, a citizen is obliged “to comply with the legal requirements of an official of the customs authority and has the following rights: to demand that the decision of the head of the customs authority or the person replacing him be announced to him to conduct a personal search; learn about your rights and obligations; give explanations, make petitions; get acquainted with the act of personal search upon completion of its compilation, make comments on its content with their subsequent inclusion in the act; use the services of an interpreter in case of lack of knowledge of the Russian language; at the end of the personal search, appeal against the actions of officials of the customs authority, if he considers his rights and legitimate interests infringed.
During a personal search of a minor or incapacitated natural person, his legal representatives (parents, adoptive parents, guardians, trustees) or persons accompanying him have the right to be present.
A personal search is carried out by an official of the customs body of the same sex as the person being searched, in the presence of attesting witnesses of the same sex. Examination of the body of the person being searched should be carried out only by a medical worker. Presence during a personal search of persons not participating in it and not related to it is prohibited.
8. Checking the labeling of goods with special stamps, the presence of identification marks on them is carried out by the customs authorities in the course of customs control. It involves checking the presence on the goods and their packaging of not only the listed designations, but also other signs used to confirm the legality of their import into the customs territory of the Russian Federation.
According to the Labor Code, “seals, seals, letter and other markings, identification marks, transport (transportation), commercial and other documents can be used to identify goods and vehicles under customs control, stamps are affixed, samples and samples of goods and vehicles are taken. funds, drawings were drawn up, large-scale images, photographs, illustrations, and other means of identification were made. The absence of identification marks and designations on goods is considered as confirmation of the fact that goods were imported into the customs territory of the Russian Federation without customs clearance and release of goods, unless the person in whom such goods were found proves the opposite.
9. Inspection of premises and territories involves checking temporary storage warehouses, customs warehouses, duty-free shops and other places where goods and vehicles (including conditionally released) subject to customs control may be located. This form of control is carried out if there is information about the loss of goods and vehicles, their alienation or their disposal in any other way or their use in violation of the requirements and conditions established by the Customs Code, to verify such information, as well as on the basis of a random check.
In places of customs clearance, customs authorities inspect vehicles both immediately before unloading goods and conducting inspection, and after unloading.
The purpose of the inspection is to confirm the presence of property in the specified territories, as well as for persons with whom the goods must be in accordance with the conditions of customs procedures and customs regimes (as a rule, these are persons engaged in wholesale or retail trade). "Inspection of residential premises is not allowed." According to O.Yu. Bakaeva and G.V. Matvienko "inspection involves checking, visual review of the appearance of goods, items, vehicles without opening the packaging, containers, without violating the integrity of the goods."
10. One of the most extensive forms of customs control is a customs audit. It consists in “verifying the fact of the release of goods, as well as the reliability of the information specified in the customs declaration and other documents submitted during customs clearance, by comparing this information with accounting and reporting data, with invoices”, as well as with other information available to the customs authority information.
The legislator distinguishes between two forms of customs audit: general and special. The controlled entities during the general audit are the declarants; Russian persons who have entered into foreign trade transactions; persons having the right of possession and (or) the right to use goods in the customs territory of the Russian Federation; other persons performing legally significant actions on their own behalf with goods under customs control. A special audit may be carried out in respect of the said persons only in cases where, based on the results of a general audit or when applying other forms of customs control, data are found that indicate the unreliability of the information provided during customs clearance, or the use and disposal of goods in violation of established requirements and restrictions. In addition, a special audit is carried out with customs brokers, customs carriers, owners of temporary storage warehouses and customs warehouses - if data is found that may indicate violations of accounting for goods moved across the border and reporting on them or non-compliance with other requirements and conditions for the implementation of the relevant type activities. In addition, persons who are not engaged in foreign trade activities, but carry out retail or wholesale trade in imported goods, may also be subject to a special audit. The basis for this form of control is the discovery of data that the goods entered the territory of the Russian Federation in violation of the requirements established by the Labor Code, which led to a violation of the procedure for paying customs duties. Thus, a special customs audit can be carried out only when any violation of customs legislation is suspected. Both general and special customs audits can be carried out only in relation to legal entities and individual entrepreneurs.
For the purposes of conducting a customs audit, the customs authorities may use the results of an inventory conducted by a person having authority over goods or storing such goods, or by regulatory authorities, audit reports, as well as acts and conclusions drawn up by state bodies.
The decision to conduct a general customs audit is made by the head of the customs body or a person replacing him, and a special audit can be carried out only with the written permission of the above-mentioned persons. Before the start of this form of control, a person is given a copy of such a decision.
For the effectiveness of customs control, customs authorities collect information about persons engaged in controlled activities. The accumulation of information, as a rule, occurs during customs clearance and customs control. Such information includes the following data: about the founders of the organization; about state registration legal entity or individual entrepreneur; on the composition of property used for entrepreneurial activities; about open bank accounts; on activities in the field of foreign economic activity; the location of the organization; on registration with the tax authority as a taxpayer and on the identification number of the taxpayer; on the solvency of persons included in the registers of persons carrying out activities in the field of customs; in relation to individuals - on the personal data of citizens, as well as on the frequency of their movement of goods across the customs border.
Controlled persons "have the right to access the information held by the customs authorities documented information about yourself and clarifying this information in order to ensure its completeness and reliability. The customs authorities provide it free of charge.
The organization of customs control is to consider the order, procedure for the implementation of various forms of control, namely, compliance with the established deadlines, sequential passage of stages, correct design documents, etc.
According to the Labor Code, verification of documents required for customs purposes and inspection of goods is carried out by the customs authority of the Russian Federation "no later than three working days from the date of acceptance by the customs authority of the customs declaration, submission of the declaration and presentation of goods."
The term for checking goods may be extended if they are not divided into packing places by separate types and names, information about packaging and labeling is not indicated in commercial or transport documents and, as a result, the customs authorities cannot perform the necessary operations. The specified period is extended by the time necessary for the division of the consignment into separate goods.
Consider the procedure for conducting customs control on the example of customs inspection of goods and vehicles.
The decision to conduct a customs inspection is made by an authorized person of the customs authority and notifies the declarant of it. When conducting a customs inspection, officials of the customs authorities have the right to: demand from persons with appropriate powers to present goods and vehicles for inspection; in agreement with the head of the inspection unit, increase the volume and degree of inspection; attract specialists and experts to assist in customs control.
The main duties of officials of the customs authorities: compliance with the established deadlines and procedures for conducting inspections; correct drawing up of the act of customs inspection; non-infliction of unlawful harm to goods and vehicles, etc.
Inspection, as a rule, is carried out in an amount sufficient to obtain information about the goods transported in one vehicle, according to one transport document.
During selective customs inspection, its results apply to all goods of the same name. But if a person does not agree with this, he has the right to demand additional customs examination. Based on the results of this form of control, an act is drawn up in two copies. It must contain the following details: information about the officials who carried out the customs inspection and the persons present at it; the reasons for the inspection in the absence of the person concerned; results of customs inspection.
When choosing forms of customs control, a risk management system (hereinafter RMS) is used. The risk analysis method makes it possible to optimally use the resources of customs authorities without reducing the effectiveness of customs control.
The fundamentals and principles of customs control, which involve the use of RMS, are enshrined in the International Convention on the Simplification and Harmonization of Customs Procedures of the World Customs Organization (Kyoto Convention, as amended in 1999).
The risk management system is based on the efficient use of customs authorities' resources to prevent violations that:
Are sustainable;
Associated with evasion of customs duties and taxes in significant amounts;
Undermine the competitiveness of domestic proposals;
They affect other important interests of the state, the enforcement of which is entrusted to the customs authorities.
The basis for making a decision on the choice of specific forms of customs control are the results of the analytical work, which is called the risk profile.
Customs authorities apply risk analysis methods to determine the goods, means of transport, documents and persons subject to inspection and the extent of such inspection. The State Customs Committee determines the customs control strategy based on the system of risk assessment measures.
Thus, having disclosed the forms and procedure for customs control, we can draw the following conclusion:
The form of customs control is understood as the direction of activity of an official of the customs authority, including the use of certain methods, means and methods in order to verify compliance by subjects of foreign economic activity with the customs legislation of the Russian Federation.
In accordance with Art. 366 of the Labor Code, customs control is carried out in the following forms:
1. verification of documents and information - involves the implementation of documentary control by the customs authorities and checks the following documents: customs documents (customs declarations, delivery control documents); commercial documents (contracts, invoices, shipping and packing lists, specifications, etc.); transport documents (waybills, bills of lading); other documents necessary for the implementation of customs control (constituent documents, various certificates).
Documents submitted to the customs authority for verification must be authentic and have reliable information. They must be stored for at least three calendar years after the year during which the goods lose their status under customs control.
2. Oral survey - conducted in relation to individuals and carried out during customs clearance. In the course of this form of control, the official of the customs authority determines a list of issues that need to be clarified in order to verify the presence or absence of violations of current legislation.
3. receipt of explanations - an official of the customs authority receives information about the circumstances that are important for the conduct of customs control.
4. customs surveillance - visual surveillance by authorized officials of the customs authorities of the transportation of goods and vehicles under customs control, the performance of cargo and other operations with them. Customs supervision can be carried out both in a systematic form and at a time.
5. customs inspection of goods and vehicles - an external visual inspection of goods, luggage of individuals, vehicles, cargo containers, customs seals, seals and other means of identifying goods for the purposes of customs control.
6. customs inspection of goods and vehicles is carried out after the acceptance of the customs declaration for goods and is associated with the removal of seals, seals and other means of identification of goods, opening the packaging of goods or cargo space, vehicle or containers, containers and other places where they are or may be products.
Customs inspection can be basic, repeated, directed.
7. personal search - an exceptional form of customs control involves the examination of things, clothes and the body of an individual, and, if necessary, their examination. It should be carried out in a correct form, excluding the humiliation of personal dignity and the infliction of unlawful harm to the health and property of a person.
8. checking the labeling of goods with special marks, the presence of identification marks on them. Means of identification may be destroyed or changed only by the customs authorities.
9. Inspection of premises and territories - involves checking temporary storage warehouses, customs warehouses, duty-free shops and other places where goods and vehicles subject to customs control may be located.
10. customs audit - consists in checking the fact of the release of goods, as well as the accuracy of the information specified in the customs declaration and other documents provided during customs clearance, by comparing this information with accounting and reporting data, with invoices.
There are two types of customs audit: general and special. They can be carried out only in relation to legal entities and individual entrepreneurs.
For the effectiveness of customs control, customs authorities collect information about persons engaged in controlled activities. The accumulation of information occurs during customs clearance and customs control.
The organization of customs control consists in considering the order, procedure for the implementation of various forms of control, namely, observing the established deadlines, sequentially passing the stages, correct paperwork, etc.
After analyzing the forms and procedure for conducting customs control in the next subsection, it is necessary to study the organization and procedure for conducting examinations and studies during customs control.
1.3 Organization and procedure for conducting examinations and studies during customs control
When exercising customs control, in order to clarify emerging issues, special knowledge is often required, which can be obtained through various kinds of examinations and studies. Customs laboratories carry out materials science, identification, chemical, certification, technological, merchandise, environmental, art history and other types of customs examinations. They are directly carried out by employees (experts) of customs laboratories and other relevant organizations with higher or secondary specialized education, who have received training in the relevant field of customs expertise and are allowed to conduct them based on the results of attestation. "Any person who has the special knowledge to give an opinion may be appointed as an expert." An agreement is made with him. When appointing an examination at the initiative of the declarant or other interested person, their proposals on the candidacy of the expert are allowed.
The decision on the appointment of an examination shall indicate the grounds for its conduct; surname, name and patronymic of the expert; place of examination; questions submitted to it; a list of attached materials and documents, the deadline for conducting and submitting an opinion to the customs authority. The decision shall be issued by an official of the customs body with the consent of the head of this body or a person replacing him. The resolution also states that the expert is warned about administrative liability for giving a knowingly false conclusion.
In the "decree on the appointment of an examination in relation to documents for the permission of an expert, next questions: method of making a document and its individual details; the fact and method of making changes to the document; the original content of the document that has undergone changes; the presence or absence of identity between printed forms, which applied the studied prints of seals (stamps), and samples; performer and circumstances of handwritten notes (alphabetic and digital) and signatures”.
Part 4. Art. 378 of the Labor Code defines the maximum period for the examination - one year. However, if the examination is carried out in relation to vehicles, this period is reduced to six months. If the release of goods is not carried out before receiving an expert opinion, then the period should not exceed the period of temporary storage (as a rule, two months).
An official of the customs authority is obliged to familiarize the declarant or other person with authority in relation to goods, if known, with the decision on the appointment of an examination and explain his rights, about which an appropriate note is made in the decision, certified by the specified person or his representative.
Expenses for conducting examinations incurred by the customs authorities, customs laboratories and other experts and organizations that conducted the examinations shall be reimbursed from the federal budget, except in cases where the examination is not initiated by the customs authority.
Let's analyze the rights of declarants and interested parties when appointing an examination.
These include the following rights:
Reasonably challenge an expert and petition for the appointment of another expert;
Submit petitions for posing additional questions to the expert in order to obtain an opinion on them;
With the permission of the customs authority, be present during the examination and give explanations to the expert;
Take samples and samples of goods;
To get acquainted with the expert's opinion or his message about the impossibility to give an opinion and receive a copy of such an opinion or message;
Request additional or re-examination.
The legislation also defines the range of rights that an expert has in carrying out a special study. These are rights such as:
Get acquainted with the materials related to the subject of the examination;
With the consent of the customs authority, involve other experts in the production of expertise;
Request Additional materials necessary for the examination;
Refuse to give an opinion (in writing) if the materials provided to him are insufficient or if he does not have the necessary knowledge to conduct an examination;
With the permission of the customs authority to participate in the implementation of specific actions in the implementation of customs control.
The expert is responsible for disclosing information constituting commercial, banking and other legally protected secrets, as well as other confidential information.
According to O.Yu. Bakaeva and G.V. Matvienko "the ultimate goal of any examination is to establish the truth, which is clothed in the form of a conclusion." In accordance with Part 2 of Article 379 of the Labor Code, the expert opinion indicates the time and place of the study; by whom and on what basis it was carried out; questions asked; objects of research with a list of attached materials and documents. The content and results of the examination are subject to a detailed description indicating the methods used and evaluation. In conclusion, the expert substantiates the conclusions on the issues raised, and also attaches materials and documents illustrating such an act.
If the examination was carried out with the participation of several experts, the conclusion is signed by all experts, and in case of disagreement, each of them draws his conclusions separately. A copy of the expert opinion is handed over to the interested person.
In accordance with Article 380, in case of insufficient clarity or completeness of the conclusion, it is possible to appoint an additional examination entrusted to the same or other experts or an organization. If the expert's conclusion is unfounded or there are doubts about its correctness, a second expert examination may be appointed, the conduct of which is entrusted to another expert.
It should be noted that "an examination of new objects that were not the subject of a previous examination is assigned according to general rules and is neither additional nor repeated."
When appointing an additional or re-examination, the issue of the possibility of re-examination of the same objects is decided. It turns out whether they have been lost and have not undergone significant changes.
Examination often requires materials, objects or their constituent parts. They can be obtained by taking samples and specimens by an official of the customs body with the obligatory drawing up of an act. With the written permission of the customs authority, the declarant or other interested person can do this on their own, but only if these actions do not complicate customs control, do not change the characteristics of the goods, do not entail evasion of customs payments and non-compliance with prohibitions and restrictions established in accordance with with the legislation of the Russian Federation on state regulation and foreign trade activities.
Information on the number (volume) of samples or specimens various goods required for expert research are sent for use in the work of customs authorities.
When samples are taken by the declarant, a separate customs declaration not submitted, provided that they are indicated in the customs declaration for the goods. Declarants, persons having authority in respect of goods, and their representatives shall have the right to be present at the taking of samples or specimens of goods by customs officials and employees of other state bodies. Declarants and their representatives are obliged to assist customs officials in taking samples or samples of goods, including carrying out cargo or other necessary operations with goods at their own expense.
Officials of the customs authorities have the right to be present when sampling or samples of goods are taken by employees of other state bodies, as well as declarants, other right holders and their representatives.
“Customs officials have the right to take samples or specimens of goods in the absence of declarants and their representatives in the following cases: absence of these persons; the existence of a threat to state security, public order, human life and health, animals, plants, the natural environment, the preservation of cultural property and in other circumstances that brook no delay (including if there are signs indicating that the goods are flammable substances, explosive items, explosive, poisonous, dangerous chemical and biological substances, narcotic drugs, psychotropic, potent, poisonous, toxic, radioactive substances, nuclear materials and other similar goods, if the goods spread stench); shipment of goods in international postal items; leaving goods and vehicles on the customs territory of the Russian Federation in violation of the customs regime providing for the export of goods and vehicles from such territory.
Taking samples or samples of goods in these cases is carried out in the presence of at least two witnesses.
The customs authorities must be made aware of the results of the study of samples or specimens of goods taken by other state bodies, and notify the declarants, persons having authority over goods, their representatives and employees of other state bodies about them.
The procedure for taking samples and samples of goods, as well as the procedure for their examination during customs control are established FCS of Russia in accordance with the Labor Code and other legal acts and approved by order of the State Customs Committee of Russia.
Due to the variety of goods moved, it is not possible to set quantitative limits for such situations, therefore, samples and samples are taken in the minimum amount that ensures the possibility of research. At the end of the study, samples and samples of goods, as a rule, are returned. Otherwise, the declarant has the right to reduce the customs value of the goods being cleared at the expense of samples taken.
Upon completion of the study, samples or samples of goods are returned to their owner, except for cases where such samples or samples are subject to destruction or disposal in accordance with the legislation of the Russian Federation, and also when the cost of returning samples or samples of goods exceeds their value.
In addition to an expert, a specialist may be involved on a contractual basis to participate in the performance of specific actions during customs control. At the same time, he must have the special knowledge and skills necessary to assist the customs authorities, including the use of technical means. The legislation strictly excludes his interest in the results of such actions.
Like an expert, a specialist has a number of rights enshrined in law. These include the following rights:
Familiarize yourself with the materials of the case;
With the permission of an official of the customs authority, ask questions related to the subject of the relevant actions to the participants in such actions;
To get acquainted with the documents drawn up as a result of the actions taken during the customs control in which he took part, and to make statements or comments on the actions he takes, to be entered in such documents.
Specialist responsibilities include:
Participate in the commission of actions requiring special knowledge, give explanations about the actions he performs;
Certify with your signature the fact of the specified actions, their content and results.
Information received by a specialist when engaging him in customs control actions, constituting a commercial, banking or other secret protected by law, as well as other confidential information, should not be disclosed to him, used for other purposes, transferred to third parties, except for cases provided for by federal laws .
Expenses incurred by the customs authorities in connection with the engagement of a specialist shall be reimbursed from the federal budget, except in cases where a specialist is involved not at the initiative of the customs authorities. The customs authorities have the right to involve, in accordance with the legislation of the Russian Federation, specialists from other law enforcement or regulatory authorities to assist in the conduct of customs control.
Expenses associated with the involvement of specialists from other state bodies, if this work is not part of their official duties, are reimbursed in the manner determined by the Government of the Russian Federation.
For use in the work of the customs authorities apply Guidelines on the appointment of examinations by officials of the customs authorities and the conduct of examinations by the Central Forensic Customs Administration and forensic services - regional branches of CEKTU, other expert organizations and experts.
Thus, having studied the subsection as a whole, we come to the following conclusion:
When exercising customs control, in order to clarify emerging issues, special knowledge is often required, which can be obtained through various kinds of examinations and studies.
Any person who has the special knowledge to give an opinion may be appointed as an expert. When appointing an examination at the initiative of the declarant or other interested person, their proposals on the candidacy of the expert are allowed.
The Labor Code of the Russian Federation determines the maximum period for the examination - one year.
If the examination is carried out in relation to vehicles, the period is reduced to six months. If the release of goods is not carried out before receiving an expert opinion, then the period should not exceed the period of temporary storage (approximately two months).
Expenses for conducting expert examinations incurred by customs authorities, customs laboratories and other experts and organizations that have carried out expert examinations shall be reimbursed from the federal budget, except in cases where the expert examination is not initiated by the customs authority.
Based on the foregoing, we can conclude that the ultimate goal of any examination is to establish the truth, which is clothed in the form of a conclusion.
In case of insufficient clarity or completeness of the conclusion, it is possible to appoint an additional examination entrusted to the same or other experts, or to an organization.
Thus, having analyzed the organization and procedure for conducting examinations and studies in the implementation of customs control, it is further necessary to study customs control as a special customs procedure, while initially it is necessary to disclose the characteristics of additional provisions related to customs control.
2. Customs control as a special customs procedure
2.1 Characteristics of additional provisions related to customs control
Chapter 37 (Articles 386-392) of the Labor Code of the Russian Federation contains additional provisions that relate to customs control.
Customs legislation establishes a category of persons who have the right to enjoy benefits during customs control. In accordance with the Labor Code of the Russian Federation, "the personal luggage of the President of the Russian Federation, including the President of the Russian Federation who has terminated his powers and members of his family accompanying him, is not subject to customs inspection." This benefit applies to the personal luggage of members of the Federation Council and deputies of the State Duma, judges who have immunity in accordance with the legislation of the Russian Federation, but only in cases where they all cross the border in connection with the performance of official or deputy duties.
Foreign warships, combat aircraft and military equipment proceeding under their own power are not subject to customs inspection. If international treaties contain conditions exempting from any form of customs control, then the benefits are applied only after their ratification. The Chairman of the State Customs Committee or a person replacing him has the right to dismiss individuals, individual goods and vehicles from certain forms of customs control, but only in cases where this is related to ensuring the security of Russia.
Art. 387 of the Labor Code of the Russian Federation determines that the collection of information about persons carrying out activities related to the movement of goods and vehicles across the customs border, or about persons carrying out activities in the field of customs affairs, is carried out by customs authorities during customs control and customs clearance of goods and vehicles, that move across the customs border.
In order to carry out customs control and collect customs payments, customs authorities have the right to accumulate information that includes certain information, namely:
1. on state registration of a legal entity or as an individual entrepreneur;
2. on registration with the tax authority as a taxpayer and on the identification number of the taxpayer;
3. the location of the organization;
4. about the founders of the organization;
5. on the composition of property used for entrepreneurial activities;
6. in relation to individuals - about the personal data of citizens (last name, first name, patronymic, date and place of birth, gender, residential address, taxpayer identification number (if any), as well as the frequency of movement of goods across the customs border by them;
7. on the solvency of persons included in the registers of persons carrying out activities in the field of customs affairs;
8. about open bank accounts;
9. on activities in the field of foreign economic activity.
Persons in respect of whom information is collected have the right to access documented information about themselves held by the customs authorities and to clarify this information in order to ensure its completeness and reliability. Customs authorities provide persons with information about them free of charge and in full.
According to Art. 388 of the Labor Code of the Russian Federation, in order to save time for customs control and increase its efficiency, customs authorities can use technical means (for example, cameras, portable dosimeters, etc.). The list and procedure for the application of which are determined by the Federal Customs Service of the Russian Federation.
The above article is the normative basis for the use of technical means by customs authorities during customs control, which make it possible to reduce the time of its implementation, as well as increase its efficiency. The technical means used during customs control include any devices and mechanisms that are used by customs authorities in the performance of their functions, ranging from inspection probes, cameras, portable dosimeters and ending with metal detectors, radiation monitoring installations. The above functions are closely related to the implementation of customs control.
The above technical means must be safe for human life and health, otherwise their use is strictly prohibited.
When conducting customs control of goods and vehicles within the territorial sea and inland waters of the Russian Federation, as well as on the territory adjacent to the customs border, the use of sea (river) and aircraft customs authorities.
The Government of the Russian Federation establishes the procedure for the use of sea (river) and aircraft of the customs authorities for the purposes of customs control.
The declarant, the owner of a temporary storage warehouse and the owner of a customs warehouse, as well as a customs broker or other person with authority in relation to goods, are obliged, at the request of the customs authority, to selectively transport, weigh or otherwise determine the quantity of goods, load, unload, reload, correct damaged packaging, opening of packaging, packaging or repacking of goods under customs control, as well as opening premises, containers and other places where such goods are or may be located.
In addition, the carrier is obliged in every possible way to facilitate the carrying out of cargo and other operations with the goods that he transports, and (or) with vehicles moving across the customs border, this provision is enshrined in Art. 389 of the Labor Code of the Russian Federation.
Art. 390 of the Labor Code of the Russian Federation regulates the identification of goods and vehicles. To identify goods and vehicles under customs control. For this purpose, seals, seals, alphabetic and other markings, identification marks, transport (transportation), commercial and other documents can be used, stamps can be affixed, samples and samples of goods taken, detailed description goods and vehicles, drawings were drawn up, large-scale images, photographs, illustrations, and other means of identification were made.
In the process of customs control, identification means may be destroyed or changed (replaced), except in cases where there is a real threat of destruction, loss or significant damage to goods and vehicles. The customs authority is promptly informed of the change, removal, destruction or damage to the means of identification and evidence of the existence of this threat is provided. An act is drawn up by the customs authority on the change, removal, destruction or replacement of means of identification, the form of which is approved by the Ministry of Economic Development of Russia.
All of the above provisions apply to cases where seals, stamps or other means of identification imposed by the customs authorities of foreign states are used as means of identification for customs purposes.
In addition, the declarant may take the initiative and ask the customs authorities to identify Russian goods that are declared for export from the customs territory of the Russian Federation. This happens at the place of their declaration.
Art. 391 of the Labor Code of the Russian Federation establishes that if, during customs control, goods illegally transported across the customs border are found and this entailed non-payment of customs payments (customs duties, taxes), then such goods are seized. The above is regulated by Art. 391 and Art. 377 of the Labor Code of the Russian Federation. Goods illegally moved across the customs border are confiscated from persons who have purchased goods in the customs territory of our country in connection with the implementation of entrepreneurial activities. The above goods are placed in a temporary storage warehouse and are considered as being under customs control.
The above persons are entitled to pay customs duties in accordance with Art. 327 of the Labor Code of the Russian Federation and fulfill the requirements and conditions established by law for customs clearance of goods in a simplified manner. This procedure is determined by the Ministry of Economic Development of Russia. If persons pay customs payments no later than five days from the date of discovery of goods in them or ensure their payment in accordance with Sec. 31 of the Labor Code of the Russian Federation, then penalties on the indicated amounts of customs payments are not charged and the goods are not seized.
The above provisions regarding granting persons the right to pay customs payments and carry out customs clearance of goods illegally imported into the customs territory of the Russian Federation do not apply to goods prohibited for import into Russia, goods the circulation of which is prohibited in accordance with the legislation of the Russian Federation (for example, illegal movement across the customs border of weapons, drugs, antiquities and art, etc.), as well as on goods for which quantitative restrictions are established when they are imported in accordance with the legislation of the Russian Federation on measures to protect the economic interests of the Russian Federation in the implementation of foreign trade in goods (for example, excisable goods, including alcoholic beverages).
If the above persons have made payment of customs payments and proceeded with customs clearance, the goods are considered as released for free circulation and the customs authorities have the right to take all necessary actions to identify persons involved in the illegal movement of goods across the customs border.
In the event that persons who have purchased goods illegally imported into the customs territory of the Russian Federation refuse to pay customs duties and perform customs operations, the disposal of such goods is carried out in accordance with Art. 352 of the Labor Code of the Russian Federation. Goods specified in paragraph 3 of Art. 391 of the Labor Code of the Russian Federation, are transferred to federal property on the basis of a court decision, an arbitration court upon an application from the customs authorities.
The results of the customs control are drawn up in accordance with the provisions of the Labor Code of the Russian Federation and can be recognized as evidence in criminal, civil cases and cases of administrative offenses. They are subject to evaluation by the court, arbitration court or official when considering these cases, complaints against the decision, action (inaction) of the customs authorities and their officials or cases on economic disputes resolved by the arbitration court, along with other evidence in accordance with the criminal procedure legislation of the Russian Federation, the legislation of the Russian Federation on civil proceedings and on proceedings in arbitration courts or the legislation of the Russian Federation on administrative offenses (Article 392 of the Labor Code).
Customs legislation establishes a category of persons enjoying benefits during customs control. These include: the President of the Russian Federation and the members of his family following him: members of the Federation Council: deputies of the State Duma; judges. The luggage of the above persons is not subject to customs inspection if they cross the border in connection with the performance of official duties. Foreign warships, combat aircraft and military equipment that are moving under their own power are not subject to inspection. The Chairman of the State Customs Committee has the right to exempt individuals, individual goods and vehicles from certain forms of customs control in cases where this is related to ensuring the security of Russia.
In order to save time and improve the efficiency of customs control, customs authorities may use technical means (cameras, metal detectors, portable dosimeters, etc.).
The Labor Code of the Russian Federation regulates the issues of identification of goods and vehicles, for which seals, seals, identification marks, letter and other markings are used. Means of identification can be destroyed or changed (replaced).
If customs authorities detect goods illegally moved across the customs border and, as a result, non-payment of customs duties and taxes, such goods are seized, or they are subject to seizure and placement in a temporary storage warehouse.
Thus, having studied the characteristics of additional provisions related to customs control, it is further necessary to analyze the measures taken by the customs authorities in relation to individual goods, which is the subject of the next subsection of the study.
2.2 Measures taken by the customs authorities in relation to individual goods
The Labor Code of the Russian Federation clearly defines the range of measures taken by the customs authorities in relation to individual goods, to which an entire chapter of the above code is devoted.
The customs authorities, in the manner prescribed by law, take measures related to the suspension of the release of goods, based on the application of the holder of exclusive rights (for objects of copyright and related rights, trademarks, service marks) and the holder of the right to use the appellation of origin of goods. These measures are taken when moving goods across the customs border or performing other actions with goods under customs control.
In accordance with paragraph 5 of article 403 of the Labor Code of the Russian Federation and paragraph 5.3.6 of the Regulations "On the Federal Customs Service of Russia", approved resolution Government of the Russian Federation dated July 26, 2006 No. 459, one of the main functions of the customs authorities is to ensure, within their competence, the protection of intellectual property rights.
Measures taken by the customs authorities in accordance with Sec. 38 of the Labor Code of the Russian Federation, do not prevent the right holder from resorting to any means of protecting his rights in accordance with the legislation of the Russian Federation.
The right holder who has information that, in accordance with the legislation of the Russian Federation, there is a violation of his intellectual property rights in connection with the movement of goods across the customs border that, in his opinion, are counterfeit, or when performing other actions with goods under customs control , has the right to file an application with the Federal Customs Service of the Russian Federation for taking measures related to the suspension of the release of such goods. In this case, the provisions of art. 394 of the Labor Code of the Russian Federation. The application may be submitted on behalf of the right holder by his representative.
The Ministry of Economic Development of Russia determines the procedure for filing an application and the requirements for the declared information, depending on the type of intellectual property object.
The Federal Customs Service of the Russian Federation considers the application within a period not exceeding one month from the date of receipt of the application, and makes a decision to take measures in accordance with the norms of the Labor Code of the Russian Federation or to refuse to take such measures.
In order to verify the accuracy of the information provided by the right holder (his representative), the FCS of the Russian Federation has the right to request from third parties, as well as from state bodies, documents confirming the declared information. Within 10 days from the date of receipt of the request, these persons are required to provide the requested documents. At the same time, the Federal Customs Service of the Russian Federation has the right to extend the period for consideration of the application, but not more than up to two months.
The decision to refuse to take measures in accordance with Ch. 38 of the Labor Code of the Russian Federation is adopted in the event that the copyright holder or his representative submits false information, as well as non-compliance with the requirement established by paragraph 2 of Art. 395 of the Labor Code of the Russian Federation, he receives a decision to refuse to take action. The foregoing is governed by ch. 38 of the Labor Code of the Russian Federation.
The right holder or his representative shall be notified of the decision in writing within three days from the date of such decision.
In the event of a change in the information specified in the application or in the documents attached to it, the right holder or his representative must immediately notify the Federal Customs Service of the Russian Federation about this.
As a result of the analysis of judicial practice in cases of intellectual property violations, the following issues were identified, the interpretation of which by the judicial authorities and customs authorities is different, which leads to negative court decisions and the formation of negative judicial practice in this category of disputes.
In Art. 395 of the Labor Code of the Russian Federation regulates issues related to the customs register of intellectual property. Intellectual property objects in respect of which the Federal Customs Service of the Russian Federation has decided to take measures in accordance with Ch. 38 of the Labor Code of the Russian Federation are entered into the customs register of intellectual property objects. There is no fee for inclusion in the register. The Ministry of Economic Development of Russia determines the procedure for maintaining the register of the Federal Customs Service of the Russian Federation.
The object of intellectual property is included in the register, provided that the right holder ensures the fulfillment of the obligation specified in paragraph 4 of Art. 394 of the Labor Code of the Russian Federation, as well as in the ways provided for by the civil legislation of the Russian Federation.
In addition, the right holder has the right, instead of ensuring the fulfillment of the obligation, to submit an insurance contract for the risk of liability for causing harm in favor of the persons specified in paragraph 4 of Art. 394 of the Labor Code of the Russian Federation. In this case, the amount of the obligation security or the sum insured must be at least 500 thousand rubles.
Customs legislation, namely Art. 395 of the Labor Code of the Russian Federation, establishes that an intellectual property object is subject to exclusion from the register in the following cases:
At the request of the copyright holder (his representative);
If the right holder fails to fulfill the conditions that ensure the fulfillment of obligations for inclusion in the register;
Upon the expiration of the term of legal protection of the object of intellectual property;
If the right holder did not apply to the body authorized in accordance with the legislation of the Russian Federation for the protection of his rights within the period of suspension of the release of goods.
The Federal Customs Service of the Russian Federation ensures the publication of the list of intellectual property objects included in the register in its official publications. Access to the above information is free.
The period during which the customs authorities take measures related to the suspension of the release of goods is established. This period is established on the basis of the application of the right holder or his representative for no more than five years from the date of entering the intellectual property object into the register. In addition, the specified period may be extended on the basis of an application from the right holder or his representative, subject to the requirements provided for in Art. 394 and paragraph 2 of Art. 395 of the Labor Code of the Russian Federation. The above requirements include: . Also, the legislator in Art. 396 of the Labor Code of the Russian Federation indicates that the period during which the customs authorities take measures related to the suspension of the release of goods cannot be longer than the period of legal protection of an intellectual property object.
According to Art. 397 of the Labor Code of the Russian Federation, if, during customs clearance and customs control, the customs authority detects goods indicated by the right holder or his representative as counterfeit, the release of such goods is suspended for 10 working days. At a sufficiently substantiated written request of the right holder or his representative, the specified period may be extended, but not more than for another 10 working days, if the specified person has applied to the bodies authorized in accordance with the legislation of the Russian Federation for the protection of the rights of the right holder.
The head of the customs authority or the person replacing him shall make a decision in writing to suspend the release of goods and extend the term for suspending the release of goods.
The customs authority not later than the next day after the day of suspension of the release of goods shall notify the declarant and the right holder or his representative of the suspension of the release of goods. Indicates the reasons and terms for such suspension, and also informs the declarant of the name (surname, first name, patronymic) and address of the right holder or his representative, the right holder or his representative - the name (surname, first name, patronymic) and address of the declarant.
With the written permission of the customs authority, the right holder and the declarant (their representatives) may take, under customs control, samples and specimens of goods in respect of which a decision has been made to suspend the release, conduct their examination, and also examine, photograph or otherwise record such goods.
At the request of the right holder or his representative, the customs authority may provide additional information that the right holder may need to prove a violation of his rights, except as otherwise provided by federal laws. But for more information, a written request from the copyright holder or his representative is required.
“Information received by the right holder (his representative) or the declarant is confidential and should not be disclosed to them, transferred to third parties, or to state bodies, except as otherwise provided by federal laws.”
In the event that before the expiration of the term for suspending the release of goods, a decision is not received from the authorized person to seize the goods, to seize them or to confiscate them, the decision to suspend the release of goods shall be canceled on the day following the day of the expiration of the period for suspending the release of goods.
The decision to suspend the release of goods is subject to cancellation before the expiration of the period for suspension of the release of goods in the following cases:
If the right holder or his representative applied to the customs authority with a request to cancel the decision to suspend the release of goods;
If the object of intellectual property is excluded from the register.
The decision to suspend the release of goods is subject to cancellation on the day when it became known about the existence of the grounds provided for in paragraph 2 of Art. 399 of the Labor Code of the Russian Federation.
The head of the customs authority who made such a decision or the person replacing him shall cancel the decision to suspend the release of goods in writing. After the cancellation of such a decision, the release of goods is carried out in the manner prescribed by the Labor Code of the Russian Federation.
The Labor Code of the Russian Federation provides that measures related to the suspension of the release of goods in accordance with Ch. 38 of the Labor Code of the Russian Federation are not applied by the customs authorities in relation to goods containing objects of intellectual property and moved across the customs border by individuals or sent in international mail in small quantities, if such goods are intended for personal, family, household and other goods not related to the implementation of entrepreneurial needs activities.
The competence of the customs authorities, in accordance with the provisions of Article 361 and Clause 1 of Article 376 of the Labor Code of the Russian Federation, includes, among other things, the conduct of customs control after the release of goods in the form of a customs audit - verification of the fact of release of goods, as well as the reliability of the information specified in the customs declaration and other documents submitted during customs clearance.
The information specified in the customs declaration and in other documents submitted during customs clearance includes information on compliance with prohibitions and restrictions established in accordance with the legislation on state regulation of foreign trade activities.
Persons who may be subject to a customs audit include persons engaged in wholesale or retail trade in goods imported into the customs territory of the Russian Federation.
Thus, having studied the subsection as a whole, we can conclude that:
In ch. 38 of the Labor Code of the Russian Federation defines the measures taken by the customs authorities in relation to individual goods. These measures are related to the suspension of the release of goods, based on the application of the holder of exclusive rights to objects of copyright and related rights, trademarks, service marks and the holder of the right to use the appellation of origin of goods. The Federal Customs Service of the Russian Federation considers applications within a period not exceeding one month from the date of receipt of the application, and makes a decision to take measures or to refuse to take such measures.
Intellectual property objects, in respect of which the Federal Customs Service of the Russian Federation has decided to take measures by the customs authorities in relation to certain goods, are entered in the customs register of intellectual property objects, taking into account the enforcement of obligations (clause 4, article 394 of the Labor Code of the Russian Federation) by the right holder.
The legislation establishes cases as a result of which an object of intellectual property is subject to exclusion from the register.
After analyzing the measures taken by the customs authorities in relation to individual goods, it is further necessary to indicate the effectiveness of customs control as an administrative procedure in the customs business, which is planned to be disclosed in the next subsection.
2.3 Efficiency of Customs Control as an Administrative Procedure in Customs
customs control expertise
In a broad sense, customs control covers all procedural activities of customs authorities, including customs clearance. Within the framework of customs control, a system of organizational, managerial, law enforcement and fiscal measures is being implemented.
Customs clearance - these are customs operations carried out by the customs authorities and other persons, aimed at maintaining or changing the status of goods and documented by the customs authorities.
Measures of customs control in the narrow sense are not only verification actions, but also have a coercive and preventive character. In addition, in the course of customs control, the customs authorities implement a system of measures of administrative responsibility for violation of customs rules. Such coercive measures are measures to ensure proceedings in cases of administrative offenses and administrative penalties regulated by the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). According to Part 1 of Article 28.3 of the Code of Administrative Offenses of Russia, protocols on administrative offenses provided for by the Code of Administrative Offenses of Russia are drawn up by officials of the bodies authorized to consider cases of administrative offenses in accordance with Chapter 23 of the Code of Administrative Offenses of Russia, within the competence of the relevant body. Therefore, we can talk about customs control as a system for the implementation of state coercion in the field of customs, not limited to the actual verification activities established by the Labor Code of the Russian Federation. Such an approach to understanding customs control is sufficiently commented on by legal scholars and finds its justification in the Customs Code of the Russian Federation. So, based on the literal interpretation of paragraphs 20 and 21 of Part 1 of Art. 11 of the Labor Code of the Russian Federation, it should be concluded that, strictly speaking, control and verification actions are not customs operations. This is a customs activity of a compulsory preventive and preventive nature, providing a special legal regime that applies to goods and vehicles in connection with their movement across the customs border. The effectiveness of customs control as an administrative customs procedure is increased and lies in the fact that the customs authorities, in the performance of their functions, can use technical means (inspection probes, radar control installations, etc.). In addition to increasing efficiency, these tools significantly save time for customs control.
Let us analyze the judicial practice regarding the above, since in the process of conducting a study on the topic “Customs control in the system of administrative procedures of the customs business, its effectiveness and ways to improve”, it became quite obvious that the judicial practice on these issues is ambiguous.
Thus, in particular, by the decision of the Arbitration Court of the Republic of Karelia dated November 20, 2006 in case No. A26-7848 / 2006-21 on the claim of the Petrozavodsk customs against Korobeynikov S.N. on bringing the defendant to administrative responsibility in accordance with Article.14.10 of the Code of Administrative Offenses of the Russian Federation to satisfy the stated requirements denied.
When deciding on the refusal, the court of first instance indicated that the goods seized from the entrepreneur Korobeinikov S.N. was not under customs control and there is no evidence confirming that the goods were imported into the territory of Russia.
The appellate instance, canceling this decision, indicated that the establishment by the customs authority during the administrative investigation of evidence indicating the acquisition of counterfeit goods on the domestic market, outside of participation in foreign economic activity, cannot be a legal basis for refusing to bring the guilty person to administrative responsibility.
On 23.05.2007, the decision of the FAS SZO was annulled, the decision of the court of first instance was upheld. The cassation instance pointed out that the lack of evidence testifying to the importation of the confiscated from the entrepreneur Korobeynikov S.N. goods to the territory of the Russian Federation, allows us to conclude that this product was not under customs control, therefore, it cannot be the subject of customs control. The actions of the customs authority to draw up a protocol on an administrative offense go beyond the competence of the customs authority to carry out customs control.
Let's consider another example.
The Arbitration Court of the Novgorod Region in satisfying the requirement of the Novgorod Customs to bring to administrative responsibility under Article 14.10 of the Code of Administrative Offenses of Russia an individual entrepreneur V.N. Matyunin was denied due to the fact that the customs authority had no grounds and powers to draw up a protocol on an administrative offense.
In accordance with clause 12, part 2, article 28.3 of the Code of Administrative Offenses of Russia, customs officials have the right to draw up protocols on administrative offenses provided for in article 14.10 of the Code of Administrative Offenses of Russia. However, customs authorities can exercise this right only within the limits of their competence established by the Customs Code of the Russian Federation.
It follows from the customs audit act that the customs office does not have data on the import of certain items of seized products, the rest of the products were imported in 2004. Thus, the goods that are the subject of an administrative offense seized according to the protocol for the seizure of things and documents in the course of the proceedings were not under customs control, or a one-year period has expired to verify the accuracy of the information declared during the customs clearance of the goods, established by paragraph 2 of Art. 361 of the Labor Code of Russia. In connection with the above, a special customs audit and subsequent actions were carried out by the customs authority in violation of customs legislation.
The use by the court of evidence obtained in violation of the law contradicts Part 3 of Article 26.2 of the Code of Administrative Offenses of Russia.
At the same time, there is a positive judicial practice of customs authorities in similar cases.
Thus, the Moscow Arbitration Court, by decision dated December 27, 2006 in case No. A40-70814 / 06-79-457 (entered into legal force), satisfied the application of the Central Excise Customs to Import Trade Consult LLC on bringing to administrative responsibility under Article 14.10 of the Code of Administrative Offenses of the Russian Federation for illegal use of someone else's trademark.
LLC "Import Trade Consult" asked to refuse to satisfy the requirements, since it was neither the importer nor the owner of the products, it did not make any transactions with perfumery products except for the storage agreement, therefore, it did not violate the exclusive rights of the trademark owner and there is no composition in its actions administrative offense.
However, the court, satisfying the requirements of the customs, indicated that the customs authority acted within its competence, and the fact that the Company committed an offense, the liability for which is provided for in Article 14.10 of the Code of Administrative Offenses of the Russian Federation, is confirmed by the materials of the administrative case, the time limits established by Article 4.5 of the Code of Administrative Offenses of the Russian Federation for bringing to administrative responsibility have not expired.
At the same time, the court regards the presence of perfumery products in the warehouse rented by the Company as storage for its introduction into civil circulation, which forms an administrative offense, liability for which is provided for by Article 14.10 of the Code of Administrative Offenses of the Russian Federation.
Also, by the Decree of the Federal Antimonopoly Service of the Central District dated January 24, 2007 in case No. A35-4245 / 06-C9, the decision of the Nineteenth Arbitration Court of Appeal dated October 03, 2006 on the satisfaction of the application of the Kursk customs to attract IP Protsenko A.A. was upheld. to administrative responsibility for committing an administrative offense under Article.14.10 of the Code of Administrative Offenses of the Russian Federation.
In the decision of the FAS, the Central Organ indicates that the court of first instance, refusing to satisfy the requirements of the Kursk customs, proceeded from the fact that the goods that the entrepreneur stored and offered for sale at the time of the inspection by the customs authorities were not under customs control, and the deadline for checking the goods issued for free circulation by virtue of clause 2 of article 361 of the Labor Code of the Russian Federation has expired.
Reversing the decision of the court of first instance and satisfying the application of the Kursk Customs, the Court of Appeal rightly proceeded from the following.
The conclusion of the trial court to the effect that Protsenko A.A. is not a manufacturer this product, nor by the person by whom this product was put into circulation, or imported into the territory of the Russian Federation, and thus in his actions there is no composition of an administrative offense provided for by Article 14.10 of the Code of Administrative Offenses of the Russian Federation is erroneous, since when purchasing goods from the previous owner from Protsenko A.A. it was possible to establish, having familiarized himself with the Customs Register of Intellectual Property Objects, who owns the named trademarks, however, the latter did not take all measures depending on him to clarify these circumstances, which indicates the presence of guilt in his actions.
The argument that the actions of the Kursk customs to inspect the trading pavilion IP Protsenko A.A. in order to verify information about the presence in its premises of products labeled with the trademarks "BOSS", "HUGO", "HUGO BOSS" can be considered legal only within the one-year period established by Article 361 of the Labor Code of the Russian Federation, the cassation board considered it untenable, since the customs authority of the premises was carried out lawfully on the basis of paragraph 3 of part 1 of article 28.1, article 28.2, paragraph 12 of part 2 of article 28.3 of the Code of Administrative Offenses of the Russian Federation.
Similar conclusions are contained in the Resolution of the Arbitration Court of Cassation of the Federal Antimonopoly Service of the North Caucasus District of May 2, 2007 in case No. A15-1704/2006 on the claim of the Yamalo-Nenets Customs against Yu.I. Kuraishova. on bringing to administrative responsibility under Article 14.10 of the Code of Administrative Offenses of the Russian Federation.
Thus, customs control in the system of customs administrative procedures is a set of productions of a control and supervisory type, including enforcement measures, which are carried out by customs authorities in connection with the movement of goods and vehicles across the customs border in order to ensure compliance with customs legislation, as well as legislation and international treaties of the Russian Federation. Control over their execution is assigned to the customs authorities by determining and confirming the status of goods, vehicles and persons, suppressing violations of customs rules and exercising responsibility in the field of customs.
Customs control is a set of verification operations carried out by the customs authorities in order to determine and confirm the status of goods, vehicles and persons in the customs business, suppress violations of customs rules and implement responsibility in the field of customs business.
Conclusion
After conducting a study on the topic "Customs control in the system of administrative procedures of the customs business, its effectiveness and ways to improve", it was found that the relevance of the study is as follows:
All goods transported across the border of the Russian Federation are subject to customs control;
Customs control, as a means of ensuring the proper application of customs laws and compliance with the prescriptions of other by-laws and regulations, should be carried out with the maximum facilitation of conditions for international trade;
Customs controls should be limited to the minimum necessary to achieve the essential objectives and should be carried out on a selective basis and with the greatest possible application of risk management techniques.
In the course of solving the first task “General provisions related to customs control”, it was found out that:
Customs control is a set of measures carried out by the customs service in order to ensure compliance with customs legislation;
The implementation of customs control implies the presence of a certain place where it is carried out - the customs control zone;
Participants of customs control can be collective and individual;
The implementation of customs control is based on a system of special principles.
Having solved the second problem “Forms and procedure for customs control”, we can say that:
The form of customs control is understood as the direction of activity of an official of the customs authority, including the use of hotel methods, means and methods in order to verify compliance by subjects of foreign economic activity with customs legislation;
Customs control may be carried out at the discretion of the customs authorities in the form of verification of documents and information, oral questioning, obtaining explanations, customs supervision, customs inspection of goods and vehicles, customs inspection of goods and vehicles, personal search, checking the marking of goods with special stamps, inspection of premises and territories and customs audit;
The organization of customs control consists in observing the established deadlines, successively passing the stages, collecting information about persons involved in controlled activities, correct execution of documents, etc.
When solving the third task “Organization and procedure for conducting examinations and studies, the following was revealed:
When exercising customs control, in order to clarify emerging issues, special knowledge is often required, which can be obtained through various types of examinations and studies;
It is necessary to involve an expert in order to conduct examinations and research;
The Labor Code of the Russian Federation determines the terms for conducting examinations;
The ultimate goal of any examination is to establish the truth, which is clothed in the form of a conclusion.
In the course of solving the fourth task “Characterization of additional provisions related to customs control, it was found that:
When conducting customs control, the customs legislation establishes a category of persons enjoying benefits;
For the effectiveness of customs control, customs authorities can use various technical means;
The Labor Code of the Russian Federation regulates the issues of identification of goods and vehicles;
Upon detection by the customs authorities of goods illegally transported across the customs border, such goods are seized, or they are subject to seizure and placement in a temporary storage warehouse.
Having studied the fifth task “Measures taken by the customs authorities in relation to certain goods”, we can say that:
The Labor Code of the Russian Federation defines the measures taken by the customs authorities in relation to certain goods that are associated with the suspension of the release of goods, based on the application of the owner of exclusive rights;
The deadlines for consideration of applications by the Federal Customs Service of the Russian Federation have been established;
Intellectual property objects are entered into the customs register of intellectual property objects;
The legislation provides for cases of exclusion of an intellectual property object from the customs register of intellectual property objects.
Having conducted research on the sixth task “Efficiency of customs control as an administrative procedure of customs business” and having studied judicial practice in the course of solving this problem, we can say that customs control in the system of customs administrative procedures is a set of productions of a control and supervisory type, including measures of coercive preemptive nature. Control over their execution is entrusted to the customs authorities.
Having carried out an analysis of the principles and forms of customs control in this work, having considered its significance in customs business, having determined the importance of customs control in the system of administrative procedures of customs business, its effectiveness and ways to improve, the goal of the study was achieved.
At the same time, I consider it possible to say that the current qualifications of post-clearance control staff and post-customs control are becoming an active component unified system customs control, one of the key areas for the introduction of a system of analysis and risk management in customs.
Customs legislation is quite complex and has many specific points, so consideration of the results of customs checks in the courts is always difficult process.
Judges have considerable experience in reviewing the results of tax audits. There are well-established methods, decisions of the Supreme Court on the judicial practice of applying tax legislation have been developed. But compared to tax audits, post-clearance audits are relatively recent. Therefore, there is no generalized judicial practice on the application of customs legislation today.
Judicial authorities do not always recognize the legitimacy of accruing and collecting VAT on imported goods by customs authorities, referring these issues to the competence tax authorities. Whereas, in accordance with the current customs and tax legislation issues of collection and accounting of taxes and other obligatory payments to the budget related to the movement of goods across the customs border are within the competence of the customs authorities.
The issue of determining the customs value is one of the most difficult questions customs legislation. There are clear rules for determining the customs value. There are international clarifications on this issue. However, these conclusions are not always accepted by the courts.
Let's take an example to confirm the above.
One of the mandatory requirements when declaring the customs value is the following - the customs value declared by the declarant and the information submitted by him related to its determination must be based on reliable, quantifiable and documented information.
At the same time, as part of ongoing activities to monitor the declared customs value, the Office of Post-Customs Control prepared and sent a request to the Intelligence Customs Center of the Kingdom of the Netherlands (hereinafter referred to as the Intelligence Center) with the direction of invoices, a company exporting flowers to the Republic of Kazakhstan, for identification and establishing their authenticity.
As a result of comparing the numbers and dates of registration of invoices provided by the Dutch side, a difference in the cost of goods declared during registration was revealed.
At the same time, in the presence of sufficient evidence provided by the country of export, the court did not take into account this evidence.
The priority task set by the Head of State for the regulatory authorities in 2009 is to systematize and streamline all types of inspections carried out by government agencies in order to reduce the administrative burden on business.
The solution of this problem is carried out within the framework of building an effective system of post-clearance audit.
The construction of such a system is inextricably linked with the introduction of the institution of authorized economic operators, in accordance with international practice.
Summing up, I would like to note that:
In accordance with world practice, building an effective audit system is associated with the implementation of four audit quality standards. These include:
1. quality standards for the inspection system;
2. crisp and clear normative base;
3. minimization of uncertainty and risks for entrepreneurs;
4. fight against corruption and abuses.
As a result, the most transparent customs service will be built with high efficiency of customs control, all of which should be aimed at helping businesses, developing trade, and creating a positive image of the country in the eyes of the world community.
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More from the State and Law section:
- Summary: Proceedings for the revision of court decisions in cassation in the economic court of the Republic of Belarus
Customs control is one of the main institutions of customs law. Currently, in connection with the adoption of the new Customs Code, the procedure for moving goods and vehicles across the customs border of the Russian Federation has been changed from notification to permissive (for example, the customs regime is declared by an interested person, but approved by the customs authority).
The legislation of the Russian Federation provides for several options for communicating with regulatory authorities. Distinguish such as permissive and notifying. By notification, it is meant the submission to the regulatory authorities (bank, tax office, antimonopoly committee, etc.) of any statements or letters without further waiting for the consent or disagreement of the recipient. Permissive is an “administrative measure of a coercive nature aimed at protecting constitutional values, such as the sovereignty and economic security of the Russian Federation, the rights and legitimate interests of citizens, the legitimate interests of domestic producers and consumers, human life and health, the natural environment, etc., which itself in itself cannot be considered as an unacceptable restriction of constitutional rights and freedoms and does not violate the requirements of the Constitution of the Russian Federation.
The legal regulation of the implementation of customs control is enshrined in Section IV of the Customs Code of the Russian Federation, as well as Decrees of the Government of the Russian Federation, and departmental documents of the Federal Customs Service of Russia (hereinafter referred to as the FCS of the Russian Federation), and earlier - documents of the State Customs Committee of Russia (hereinafter referred to as the State Customs Committee of the Russian Federation), published in development of the norms established by the Customs Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). The procedure for exercising customs control by the customs authorities may also be established by Decrees of the President of the Russian Federation.
According to the Labor Code of the Russian Federation, "customs control is a set of measures carried out by customs authorities in order to ensure compliance with the customs legislation of the Russian Federation."
New approaches to the implementation of customs control are expressed as follows - the customs code provides for the maximum simplification of formalities related to the movement of goods across the customs border, simplification and reduction of customs clearance time so that goods can freely enter circulation and be used in accordance with the purpose of their importation.
At the same time, customs control is limited to a minimum of measures aimed mainly at observing the prohibitions and restrictions established by the legislation on state regulation of foreign trade activities. The emphasis is on the following main areas:
Carrying out checks after the release of goods;
Concentration of control on goods, the movement of which across the customs border is the most sensitive for the economy of the Russian Federation (risk analysis and management system);
Transferring control from the actual inspection of goods to control of information about them.
The objectives of customs control are:
Ensuring compliance by FEA participants with the norms of customs, tax, administrative, criminal legislation;
Protection of state and public security, economic interests of Russia;
Protection of public order;
Identification of the suppression of offenses and crimes in the field of customs;
Prevention of illegal acts of subjects of foreign economic relations;
Protection of the legitimate rights and interests of individuals and legal entities;
Assistance in the fight against international terrorism.
Customs control is distinguished in certain areas.
Thus, the effect of customs control in time varies depending on the nature of the foreign trade transaction. Goods and vehicles imported into the customs territory of the Russian Federation are considered to be under customs control from the moment they cross the customs border upon their arrival in the customs territory of the Russian Federation and until the moment:
Release for free circulation;
destruction;
Refusal in favor of the state;
Turning goods into federal ownership or disposing of them in any other way;
Actual export of goods and vehicles from the customs territory.
The use and disposal of imported goods and vehicles under customs control are allowed in the manner and on the terms determined by the Labor Code.
Russian goods and vehicles are considered to be under customs control when they are exported from the customs territory of the Russian Federation from the moment the customs declaration is accepted or actions are taken that are directly aimed at exporting goods from the customs territory of the Russian Federation and until crossing the customs border.
The customs authorities exercise control over the fulfillment of the obligations of persons on the re-import of Russian goods and vehicles previously exported from the customs territory of the Russian Federation or on the re-import of their processed products in accordance with the conditions of the customs regimes in the manner prescribed by Section IV of the Labor Code, if such goods (processed products) are subject to mandatory re-importation in accordance with the legislation of the Russian Federation.
As a rule, customs control is completed at the time of release of goods and vehicles. If there are grounds to believe that Russian legislation or the terms of an international treaty have been violated, customs control may be carried out after the release of goods. At the same time, the customs authorities verify the accuracy of the information declared during customs clearance. Such a check, according to Part 2 of Art. 361 of the Labor Code, can be carried out by the customs authorities within one year from the date of loss of the status of goods under customs control. Customs control after release is carried out by a commission consisting of customs officers, and, if necessary, other officials of federal executive authorities (for example, the Antimonopoly Service, the Ministry of Finance, the Ministry of Economy, etc.).
The implementation of customs control implies the presence of a certain place where it is carried out. Such places are customs control zones. The customs control zone is a part of the territory of the Russian Federation, which is isolated in accordance with the procedure established by the customs legislation of the Russian Federation for the purpose of carrying out measures on it aimed at ensuring compliance with the requirements of customs legislation. Customs control zones are created at places of customs clearance, customs operations, at places of reloading of goods, their inspection and inspection, and other places determined by the Customs Code. So, under customs control, the goods are in temporary storage warehouses, free and customs warehouses, duty-free shops, in the free customs zone. In accordance with Part 2 of Art. 362 of the Labor Code, the implementation of industrial and other commercial activities, the movement of goods, vehicles, persons, including officials of other state bodies, across the boundaries of such zones and within them are allowed only with the permission of the customs authorities and under their supervision.
Customs control zones are divided into permanent and temporary. They are permanent in cases of regular presence in them of goods subject to customs control (customs warehouses, temporary storage warehouses, duty-free shops, etc.). Temporary customs control zones are formed if it is necessary to carry out certain forms of customs control at the place of their discovery. They are created for the duration of a certain operation by decision of the head of the customs authority or a person replacing him. For example, a compartment of a train, in which a personal search of a citizen is carried out, can become a temporary zone of customs control. The main means of designating the customs control zone are rectangular signs, on a green background of which there is an inscription in Russian and, as a rule, in English "Customs control zone" ("Customs co№trol zo№e"). Goods can only be checked in customs control zones.
Each state carries out control activities through a system of authorized bodies. At the same time, “control activity falls within the competence of almost any state body as one of its functions.”
The subjects of customs control are:
customs authorities and their officials;
Entities moving goods across the border and persons providing them with contractual services (customs broker, customs carrier);
Persons assisting in customs control (specialists, witnesses, experts, medical workers).
Participants of customs control, like all subjects of customs law, can be collective and individual. The legal status of the above participants in the process of customs control is different. In customs, functions of this kind are carried out by the departments of customs clearance and customs control. E.Yu. Gracheva defines the subjects of the control relationship as "leading" and "ordinary" participants in the process. The relationship of the participants here is built on the basis of subordination, which implies the absence of legal equality of the parties.
Employees of the customs authority exercising customs control are entitled to conduct an oral questioning of individuals moving goods across the customs border of the Russian Federation; check the information declared in the customs declaration; demand the submission of other documents and information necessary for customs control and clearance, and verify them; carry out customs inspection; use in the implementation of customs control technical means that are safe for the life and health of citizens, animals and plants and do not cause damage to goods. In addition, they have the right to receive, in the prescribed manner, information and materials necessary for the performance of their official duties, as well as military small arms and cold steel in the manner and cases provided for by the Customs Code.
“The duties of customs officers in the process of customs control include:
Ensuring compliance with the legislation of the Russian Federation on customs affairs and other legislation, the control over the implementation of which is entrusted to the Russian customs authorities;
Fulfillment of orders and orders of the heads of customs authorities, given within their official powers, with the exception of obviously illegal ones;
Compliance with the established rules of internal labor regulations, the procedure for handling official information, the implementation of job descriptions;
Maintaining the level of qualifications necessary for the performance of official duties;
Keeping state and other secrets protected by law, as well as non-disclosure of information that became known to them in connection with the use of official duties, including those affecting the private life, honor and dignity of citizens;
Fulfillment of other obligations stipulated by the legislation of the Russian Federation.
The implementation of customs control is based on a system of special principles, namely:
1. The principle of legality, which means that all actions of customs control participants should not contradict the customs and other legislation of the Russian Federation, as well as international legal norms. Customs authorities are required to adhere to the postulate "everything that is not permitted by law is prohibited."
2. The principle of respect for the rights and freedoms of subjects of foreign economic activity, which is expressed in respect for the legitimate interests of controlled entities by customs officials. In the process of customs control, actions aimed at humiliating human dignity are not allowed. In addition, customs officials should not cause unlawful harm to persons, their goods and vehicles during customs control (for example, during administrative detention. “This principle is of particular importance for the legal regulation of such an exclusive customs procedure as a personal search”). Otherwise, they are held accountable. So, in accordance with Part 2 of Art. 365 of the Labor Code, losses caused by unlawful decisions, actions (inaction) of the customs authorities or their officials during customs control are subject to compensation in full, including lost profits (lost income). In the event that they commit lawful actions, losses are not subject to compensation.
3. The principle of selectivity of customs control, which is the use by officials of only those forms that are sufficient to ensure compliance with the legislation of the Russian Federation. That is, an official of the customs authority has the right to choose in which direction he will carry out customs control (for example, whether it will be an inspection of goods and vehicles or their inspection). However, the non-use of other forms of control or exemption from them does not mean that the subjects of foreign economic activity may not comply with the requirements established by regulatory enactments.
4. The principle of humanity, which means the possibility of using in the process of customs control only those technical means that are safe for life and health of humans, animals and plants, and also do not cause damage to goods, vehicles, persons (for example: magnifiers are used to check customs documents with illumination, microscopes; for monitoring audio-video information carriers - various types of audio players and voice recorders; for remotely obtaining information about the contents of customs control objects, searching and detecting smuggled objects - inspection conveyor X-ray television devices, metal detectors and metal detectors, etc.).
5. The principle of promptness, which consists in the establishment by the State Customs Committee of the Russian Federation of relatively short periods for the production of all forms of customs control (for example, "terms for checking the customs declaration, other documents and goods during customs clearance, as well as checking goods in order to establish compliance with the information specified in the customs declaration, other documents, name, origin, quantity and value of goods must be completed no later than three working days from the date of acceptance by the customs authority of the customs declaration, submission of documents and presentation of goods”).
6. The principle of cooperation with the customs authorities of foreign countries, which involves the interaction of Russian customs authorities with the customs services of partner countries through joint activities to identify and prevent illegal acts of subjects of foreign economic activity, conclude agreements with them on mutual assistance, inform and consult on certain problems ( for example, "joint customs control, which takes place in the case of customs inspection carried out simultaneously by customs officers of both states").
7. The principle of efficiency, which consists in the fact that the customs authorities seek to interact with participants in foreign economic activity, carriers and other organizations whose activities are related to the implementation of foreign trade in goods, and their professional associations (associations). For example, in addition to the Federal Assembly, the President, the Government and the State Customs Committee of the Russian Federation, the Central Bank, the Ministry of Finance, the Ministry of Economy, the Ministry of Trade, the Ministry of Taxes and Duties, etc. take an active part in the formation of customs law.
Thus, having studied the subsection as a whole, we come to the following conclusion:
Customs control is a set of measures carried out by the customs authorities in order to ensure compliance with the customs legislation of the Russian Federation.
Customs control differs in certain areas. The effect of customs control in time varies depending on the nature of the foreign trade transaction. When importing, customs control begins from the moment the goods and vehicles cross the customs border of the Russian Federation, and when exporting - from the moment the customs declaration is accepted.
The implementation of customs control implies the presence of a certain place where it is carried out. Such places are customs control zones. They are created at the places of customs clearance, customs operations, at the places of reloading of goods, their inspection and inspection, and other places determined by the Customs Code. Customs control zones are divided into permanent and temporary.
The subjects of customs control are the customs authorities and their officials; entities moving goods across the border, and persons providing them with contractual services (customs brokers and customs carriers); persons assisting in customs control (specialists, experts, medical workers).
Participants of customs control can be collective and individual.
The implementation of customs control is based on a system of special principles: legality; respect for the rights and freedoms of subjects of foreign economic activity; selectivity of customs control; humanity; efficiency; cooperation with customs authorities of foreign states; efficiency.
When choosing forms of customs control, a risk management system is used.
Having studied the general provisions related to customs control, it is further necessary to analyze the forms and procedure for conducting customs control, which is the subject of the next subsection of the study.
In the countries of the Customs Union, the only acts of legislation on administrative offenses are the Codes of Administrative Offenses (CAO RF; CAO RK; CAO RB). These normative legal acts contain the principles of administrative legislation, define the types of administrative penalties and the rules for their application, the procedure for the proceedings on cases of administrative offenses that is uniform for all bodies of administrative jurisdiction, including the application of security measures, the procedure for the execution of decisions on sentencing, as well as an exhaustive list of violations and measures of responsibility for non-compliance with regulatory requirements established at the federal level. Establishment or exclusion of administrative responsibility for committed acts is possible only by amending the said code.
Subjects of administrative responsibility are individuals and legal entities. From the point of view of determining the measures of responsibility, individuals, in turn, are divided into two categories: officials and citizens. The largest sanctions are provided for the commission of an administrative offense by legal entities, the smallest - by citizens.
Subjects of liability for committing administrative offenses in the field of customs (violations of customs rules) may be persons of any of the above categories, depending on the wording of a specific sanction.
In the case of bringing legal entities to administrative responsibility, it must be taken into account that in the event of a merger of several legal entities, a newly emerged legal entity is brought to administrative responsibility for committing an administrative offense.
When a legal entity joins another legal entity, the merging legal entity shall be brought to administrative responsibility for committing an administrative offense. In cases of separation of a legal entity or when one or more legal entities are separated from the legal entity, the legal entity to which, according to the separation balance sheet, the rights and obligations under the concluded transactions or property, in connection with which the administrative offense.
When a legal entity of one type is transformed into a legal entity of another type, a newly emerged legal entity is brought to administrative responsibility for committing an administrative offense.
The possibility of bringing legal entities to measures of administrative responsibility is also directly related to the establishment of guilt in his actions. At the same time, the guilt of a legal entity differs significantly from the concept of guilt of an individual, since, by its nature, it cannot be associated with a mental attitude to the offense committed. Therefore, a legal entity is recognized by law as guilty of an administrative offense if it is established that it had the opportunity to comply with the rules and norms for the violation of which administrative responsibility is provided, but it did not take all possible measures to comply with them. Only the presence of these circumstances in the aggregate testifies to the guilt of the category of persons in question and the possibility of being held liable.
For the commission of administrative offenses in the territory of the Russian Federation, the following penalties may be applied:
1) warning;
2) an administrative fine;
3) paid seizure of the instrument of committing or the subject of an administrative offense;
4) confiscation of the instrument of committing or the subject of an administrative offense;
5) deprivation of a special right granted to an individual;
6) administrative arrest;
7) administrative expulsion from the Russian Federation of a foreign citizen or stateless person;
8) disqualification.
9) administrative suspension of activities.
For committing administrative offenses on the territory of the Republic of Kazakhstan, the following penalties may be applied (Article 45 of the Code of Administrative Offenses of the Republic of Kazakhstan):
1) warning;
2) an administrative fine;
3) paid seizure of an item that was an instrument or subject of an administrative offense;
4) confiscation of an item that was an instrument or subject of an administrative offense, as well as property received as a result of an administrative offense;
6) deprivation of a license, special permit, qualification certificate (certificate) or suspension of its (his) action for a certain type of activity or performance of certain actions;
7) suspension or prohibition of the activities of an individual entrepreneur;
8) forced demolition of an illegally erected or erected structure;
9) administrative arrest;
10) administrative expulsion from the Republic of Kazakhstan of a foreigner or a stateless person.
The following penalties may apply for committing administrative offenses on the territory of the Republic of Belarus (Article 6.2 of the Code of Administrative Offenses of the Republic of Belarus):
1) warning;
2) fine;
3) correctional work;
4) administrative arrest;
5) deprivation of a special right;
6) deprivation of the right to practice certain activities;
7) confiscation;
8) deportation;
9) recovery of the cost of the subject of an administrative offense.
For violation of customs rules, depending on the wording of the sanction of a particular article, penalties can be imposed solely in the form of a warning, an administrative fine and confiscation of the instrument or subject of the offense. with the legislation of the member states of the customs union (clause 3 of article 7 of the Customs Code of the Customs Union) on the territory of which the offense occurred.
In the Russian Federation, a warning and an administrative fine belong to the category of so-called basic punishments, while confiscation can be established and applied as both a main and an additional punishment. For violations of customs rules, the customs authorities can independently decide on bringing to responsibility and imposing administrative penalties only in the form of a warning and a fine. The decision to confiscate is always taken by the court.
The fine, calculated on the basis of the value of the subject of an administrative offense, is established for the most dangerous violations. For many violations of customs rules, penalties are calculated based on the minimum wage.
Administrative penalty for general rule, must be paid by the person held liable no later than thirty days from the date of entry into force of the issued decision on the imposition of punishment. In this case, the corresponding amount is deposited or transferred to a bank or other credit organization. In case of failure to pay the fine within the prescribed period, the guilty person may be held liable under part 1 of article 20.25 of the Code of Administrative Offenses of the Russian Federation.
It is not confiscation to withdraw from the illegal possession of the person who committed the offense the instrument of committing or the subject of the administrative offense: subject to return to their lawful owner in accordance with federal law;
withdrawn from circulation or illegally possessed by the person who committed an administrative offense, for other reasons and on this basis subject to conversion into state ownership or destruction.
An administrative penalty can only be imposed within the limits established by law (punishment in the amount "below the lower" limit of the sanction is impossible), while no one can be held liable twice for the same administrative offense.
The imposition of an administrative penalty does not relieve a person from fulfilling the obligation for which the person has been held liable (for example, the obligation to pay customs duties, carry out customs clearance of goods, etc.).
When a person commits several administrative offenses, punishment is imposed for each separately. At the same time, in some cases (when one illegal action is committed, inaction, containing several elements of offenses at once, the consideration of cases for which is under the jurisdiction of the same judge, body, official), the principle of absorbing a less severe punishment by a more severe one is possible. For violations of customs rules, the main penalty in the form of a fine can be absorbed in this way, while, depending on the wording of the relevant sanctions, additional administrative penalties (confiscation) can be imposed.
The statute of limitations for bringing a person to administrative responsibility is the period of time during which a decision can be made to impose a punishment on the relevant case of an administrative offense. After the expiration of this period, the person cannot be held liable.
In the Russian Federation, for violation of the customs legislation of the Customs Union within the framework of the EurAsEC (hereinafter referred to as the Customs Union) and (or) the legislation of the Russian Federation on customs affairs, the Resolution on the case of an administrative offense cannot be issued after two years from the date of the administrative offense.
In the Republic of Kazakhstan, a decision to impose an administrative penalty is not enforceable if it has not been enforced within a year from the date of its entry into force.
In the Republic of Belarus, an administrative penalty may be imposed for an administrative offense in the field of customs regulation no later than three years from the date of its commission and six months from the date of its discovery.
In cases with a continuing offense (when a person fails to fulfill the obligation assigned to him for a long time, for example, to deliver goods transported in accordance with internal customs transit), the specified period begins to be calculated from the day it is discovered by the customs authority.
In case of refusal to initiate a criminal case or termination of a criminal case, but there are signs of an administrative offense in the actions of a person, the period for bringing to administrative responsibility begins to be calculated from the date of the decision to refuse to initiate a criminal case or to terminate it.
A person who has been sentenced to an administrative penalty for committing an offense shall be considered to have been subjected to this penalty within one year from the date of completion of the execution of the decision to impose the penalty.
Costs represent the actual costs incurred by the customs authority in the course of administrative proceedings. They consist of amounts paid to witnesses, attesting witnesses, specialists, translators, experts, as well as amounts spent on storage, transportation (transfer) and examination of material evidence. The decision on costs is made in the final decision on the administrative case.
Expenses in the case of an administrative offense committed by a legal entity shall be charged to the account of the said entity, except for the amounts paid to the translator.
In all other cases, when an individual is held liable (including PBOYuL and an official), or an administrative case is terminated, regardless of the grounds, the costs are charged to the federal budget.
The customs authorities of the Russian Federation have the right to initiate cases and carry out administrative proceedings on offenses provided for in part 1 of article 7.12, article 14.10, part 1 of article 15.6, part 2 of article 15.7, article 15.8, article 15.9, article 15.25, articles 16.1 - 16.23, articles 17.7, 17.9 , part 1 of article 19.4, part 1 of article 19.5, article 19.6, article 19.7, article 19.26, part 2 of article 20. Administrative Code of the Russian Federation.
The customs authorities transfer the information provided to them by the state authorities of the Member States of the Customs Union, if such information is necessary for these authorities to solve the tasks assigned to them by the legislation of the Member States of the Customs Union, in compliance with the requirements of the laws of the Member States of the Customs Union for the protection of state, commercial, banking , tax or other legally protected secrets (secrets) and other confidential information, as well as international treaties of the member states of the customs union (clause 2, article 8 of the Customs Code of the Customs Union)
Thus, the competence of the customs authorities of the countries participating in the CU is not limited to the possibility of drawing up protocols only on violations of customs rules (Chapter 16 of the Code of Administrative Offenses of the Russian Federation; Chapter 29 of the Code of Administrative Offenses of the Republic of Kazakhstan; Chapter 14 of the Code of Administrative Offenses of the Republic of Belarus), but also affects offenses in other areas ( entrepreneurial activity, relations in the field of finance, taxes and fees, property protection, etc.). Of these violations, the customs authorities of the Russian Federation are authorized to conduct an administrative investigation of the offenses provided for by Part 1 of Article 15.6, Part 2 of Article 15.7, Article 15.8, Article 15.9, Article 15.25, Articles 16.1 - 16.23 of the Code of Administrative Offenses of the Russian Federation.
Consideration of a case is one of the stages of the administrative process, at which the issue of the possibility of bringing a person to administrative responsibility and determining the type and amount of specific penalties is decided. Consideration is carried out at the place of commission of the offense (at the request of the individual held liable, the case may be considered at the place of his residence), or at the location of the body that conducted the administrative investigation. The term for consideration of the case is fifteen days under the Code of Administrative Offenses of the Russian Federation with the possibility of its extension for a maximum of one more month. (clause 1, article 29.6 of the Code of Administrative Offenses of the Russian Federation; article 11.2 of the Code of Administrative Offenses of the Republic of Belarus; article 817 of the Code of Administrative Offenses of the Republic of Kazakhstan).
The customs authorities of the Russian Federation consider cases of administrative offenses provided for by parts 1 and 3 of articles 16.1, 16.2 - 16.23 of the Code of Administrative Offenses of the Russian Federation (i.e., all cases of violation of customs rules, with the exception of cases of illegal movement of goods across the border with their concealment from customs control consideration of which is referred by law to the exclusive competence of the court).
The heads and their deputies of the Federal Customs Service, regional customs departments, customs offices, as well as heads of customs posts for offenses committed by individuals are authorized to consider cases of violation of customs rules in the Russian Federation.
In the Russian Federation, administrative cases on the grounds of parts 1 and 3 of article 16.1, 16.2, part 2 of article 16.3, 16.7, part 1 of article 16.9, 16.16, part 1 of article 16.18, part 1-3 of article 16.19, part 1 of article 16.20, article 16.21 of the Code of Administrative Offenses of the Russian Federation may be transferred to judges based on the results of their consideration, when the customs authority considers it necessary to impose an administrative penalty in the form of confiscation on the person who committed the offense. In this case, the official of the customs authority does not impose an administrative fine, but transfers the case to the appropriate judges to resolve all issues related to the responsibility of persons and the imposition of administrative penalties on them. If the customs authority makes a decision on the inexpediency of confiscation of goods in a specific case, then the case is considered by it independently with the imposition of other penalties provided for by the sanction.
In case of initiation of a case on an administrative offense, the possibility of customs clearance of goods is significantly limited by law.
According to the requirements of Article 199 of the Customs Code of the Customs Union (see also), when physical evidence is seized or arrested in an administrative case, the release of goods is not carried out until the completion of proceedings on it. As a rule, the seizure (arrest) of goods by the customs authorities is carried out in cases where these items are essential in the process of proving the commission of an administrative offense by a person and establishing his guilt (for example, they retain traces of a violation), and also when the sanction of the relevant article of the Code of Administrative Offenses of the Russian Federation confiscation of objects and (or) instruments of committing an offense is envisaged. At the same time, in accordance with Article 29.10 of the Code of Administrative Offenses of the Russian Federation, the issue of seized (arrested) goods must be resolved in the decision on the case of an administrative offense.
In case of initiation of a case on violation of customs rules, when the goods are not seized and arrested in accordance with the established procedure, customs clearance and release of goods can be carried out only by decision of the head of the customs authority whose official the case was initiated.
On the territory of the Russian Federation, the rights and obligations of residents and non-residents in relation to the possession, use and disposal of currency values, the currency of the Russian Federation and domestic securities are defined by the "On Currency Regulation and Currency Control". Administrative liability for violation of almost all obligations stipulated by the legislation on currency regulation and currency control is established in article 15.25 of the Code of Administrative Offenses of the Russian Federation, which includes seven independent offenses.
In particular, paragraph 4 of this article of the Code of Administrative Offenses of the Russian Federation defines responsibility for the failure by a resident to fulfill, within the prescribed period, the obligation to receive foreign currency or the currency of the Russian Federation to their bank accounts due for goods transferred to non-residents (including export operations), the results of intellectual property activities, work performed for them, services rendered, as well as for the failure by the resident to fulfill the obligation to return to Russia the funds paid to non-residents for non-imported goods, non-performed work, non-rendered services, non-transferred results of intellectual activity within the established period.
The requirement to transfer proceeds to the respective bank accounts of exporters in accordance with the current legislation is no longer a requirement of the customs procedure for export, therefore, its failure to comply is not a violation of customs rules, but is recognized as a violation of currency legislation.
At the same time, it should be taken into account that the provisions of the Federal Law of December 10, 2003 No. 173-FZ "On Currency Regulation and Currency Control" establish the obligation of residents, within the time limits stipulated by foreign trade agreements (contractual terms), to ensure receipt from non-residents to their bank accounts in authorized banks foreign or Russian currency due for goods transferred to non-residents. The Government of the Russian Federation has not currently determined the procedure for settlements and transfers between residents and non-residents in other (limited) terms. Therefore, until the specified procedure is established, residents have the right to grant, without restrictions, a deferral of payment for those transferred to non-residents under foreign trade agreements (contracts) for any period.
An exhaustive list of the elements of violations of customs rules, for which administrative liability may arise, as well as the types and amounts of the relevant sanctions, are contained in Chapter 16 of the Code of Administrative Offenses of the Russian Federation; Chapter 26 of the Administrative Code of the Republic of Kazakhstan; chapter 14 of the Code of Administrative Offenses of the Republic of Belarus; Code of Administrative Offenses of the Russian Federation
Article 16.1. Illegal movement across the customs border of the Customs Union of goods and (or) vehicles of international transportation.
According to subparagraph 20 of paragraph 1 of Article 4 of the Customs Code of the Customs Union, the illegal movement of goods and vehicles is understood as the movement of goods across the customs border outside the established places or at unspecified working hours of the customs authorities in these places, or with concealment from customs control, or with non-declaration or false declaration of goods, or with the use of documents containing false information about the goods and (or) with the use of counterfeit or related to other goods means of identification, as well as an attempt to such movement. However, in the context of the offense under consideration, only movement associated with the commission of one of the acts specified in Article 16.1 of the Code of Administrative Offenses of the Russian Federation, which actually differ in the way of illegal movement, should be recognized as illegal.
A person who actually submitted invalid documents upon arrival and at other stages of movement is brought to liability, solely for the accuracy of such information as the number of packages, marking and name, weight and (or) volume of goods. Thus, the provision of false information about the customs value of goods upon their arrival in the customs territory of the Customs Union does not entail bringing the person to administrative responsibility.
In cases where the shipping documents indicate a larger number of transported goods compared to the actual one, this act is not a violation, since there is no subject matter of the offense. When the goods arrive at more than indicated in the relevant documents (TIR Carnet, CMR, invoice, etc.), the subject of the offense is only the part of the goods not indicated in the documents.
It should be borne in mind that liability for non-declaration or false declaration by individuals of foreign currency or the currency of the Russian Federation is provided for in Article 16.4 of the Code of Administrative Offenses of the Russian Federation.
In cases of non-declaration of goods submitted for declaration together with other goods (when a batch consisting of several types of goods is declared), such an act is qualified under part 1 of article 16.2 of the Code of Administrative Offenses of the Russian Federation. The statement in the customs declaration of false information about the quantity of goods is also subject to qualification as non-declaration, while the subject of an administrative offense are only those goods and vehicles in respect of which the requirements of the customs legislation on declaration and customs clearance are not met, that is, the part of the goods not specified in the declaration .
The subjects of liability for this violation may be persons responsible for the performance of customs operations for the release of goods, or individuals moving goods across the customs border. However, for non-declaration of goods submitted for declaration together with other goods, the person who submitted the customs declaration, including the customs broker, is responsible.
The subject of liability for false declaration is the declarant, and if the declaration of goods was carried out by a customs broker - a customs broker. Despite the fact that the broker does not declare goods on his own behalf and is not a declarant, according to the current customs legislation, he carries out the declaration of goods, and therefore bears all related obligations, including the obligation to provide the customs authority with reliable information about the goods.
Article 16.3. Failure to comply with prohibitions and (or) restrictions on the import of goods into the customs territory of the Customs Union or the Russian Federation and (or) the export of goods from the customs territory of the Customs Union or from the Russian Federation.
Part 1 of this article provides for liability for non-compliance with established prohibitions and (or) restrictions that are not of an economic nature (are applied regardless of the declared customs regime), part 2 - of an economic nature.
Prohibitions and restrictions that are not of an economic nature include measures affecting foreign trade goods and input based on national interests and the purposes specified in Article 32 "On the Fundamentals of State Regulation of Foreign Trade Activities" (for example, a license for the import and export of military products, goods and technologies used in the creation of weapons of mass destruction and their means of delivery, a ban on the import of waste into the territory of the Russian Federation for the purpose of their burial and neutralization, the import of weapons into the territory of the Russian Federation, subject to obtaining permission from the Ministry of Internal Affairs of Russia, etc.).
Compliance with economic prohibitions and restrictions is required when placing goods under the customs regimes of release for domestic consumption, export, processing in the customs territory and processing for domestic consumption.
Economic restrictions include such as the establishment of quantitative restrictions, quotas, licensing, provision exclusive right for export and (or) import certain types goods (Articles 21, 23, 24, 26 32 of the Federal Law of December 8, 2003 No. 164-FZ "On the Fundamentals of State Regulation of Foreign Trade Activities", as well as special protective measures (special duty, import quota), anti-dumping measures(anti-dumping duty) and compensatory measures(compensatory duty), applied in accordance with Article 27 of the Federal Law of 08.12.2003 No. 164-FZ "On the Fundamentals of State Regulation of Foreign Trade Activities", (for example, a license to import meat, etc.). Thus, the composition of this violation of customs rules forms an act consisting in the failure to submit, when declaring goods, documents confirming compliance with the established restrictions, which is not related to the statement of false information in the customs declaration (when the declarant has not received permission from the customs authority to submit such documents at a later date).
The statement in the customs declaration of false information that affects the application of established prohibitions and restrictions to goods, as well as the indication in the declaration and the submission of invalid documents that served as the basis for their non-use (a fake certificate of conformity, etc.), qualifies under part 3 of article 16.2 of the Code of Administrative Offenses of the Russian Federation as a misrepresentation.
The subject of liability under Article 16.3 of the Code of Administrative Offenses of the Russian Federation is the person who is entrusted with the obligation to comply with the established prohibitions and restrictions (carrier or declarant). Based on the provisions of the customs legislation, a customs broker is not such.
Article 16.4. Non-declaration or false declaration by individuals of cash and (or) monetary instruments.
This liability rule is more specific in relation to individuals in relation to article 16.2 of the Code of Administrative Offenses of the Russian Federation.
The obligation for individuals to declare in writing the exported foreign currency is established by Federal Law No. 173-FZ of December 10, 2003 "On Currency Regulation and Currency Control".
So, when an individual exports cash from the Russian Federation in an amount equal to or not exceeding the equivalent of 10,000 US dollars, declaration is not required. When exporting an amount exceeding 10,000 US dollars, cash subject to mandatory declaration.
When qualifying the committed act as a violation of customs rules under consideration, it must be taken into account that it is not the fact that a person has completed and has a declaration that is legally significant, but the fact that it has been submitted and accepted in the prescribed manner by the customs authority.
In addition, if a person exports goods subject to mandatory written declaration and fills out a declaration for this product, he is not obliged to indicate in the declaration information about other goods that are not subject to mandatory written declaration, including currency. In the case of a voluntary choice of a written form of declaration and indication in the corresponding column of the customs declaration of false information about the amount of exported foreign currency, when its amount does not exceed the equivalent of 10,000 US dollars, the person is not subject to administrative liability.
In cases of importation of cash foreign currency, there is no possibility of holding persons liable under Article 16.4 of the Code of Administrative Offenses of the Russian Federation, since the Customs Code of the Customs Union does not establish requirements for mandatory written declaration of imported foreign currency, and the currency legislation determines that the importation of foreign currency into the Russian Federation is carried out without restrictions.
In accordance with the Law on Currency Regulation and Currency Control, the import/export and transfer of Russian currency to/from the Russian Federation is carried out by residents and non-residents in the manner established by the Government of the Russian Federation in agreement with Central Bank Russia, and may require prior registration. At present, the obligation to declare such currency in writing has not been established, and therefore Article 16.4 of the Code of Administrative Offenses of the Russian Federation regarding non-declaration and false declaration of the currency of the Russian Federation is not applied until the relevant rules are established.
Article 16.5. Violation of the regime of the customs control zone.
This article provides for liability for the following actions if they are committed without the permission of the customs authority (when a notification procedure has not been established):
- movement of goods, vehicles or persons (including officials of state bodies, with the exception of officials of customs authorities) across the borders of the customs control zone;
- movement of goods and vehicles or specified persons within the customs control zone;
- conducting production or other commercial activities in the customs control zone.
The issues of creation, designation and functioning of customs control zones are regulated by Article 97 of the Customs Code of the Customs Union, according to which they are created for the purposes of customs control in the form of customs inspection and customs inspection of goods and vehicles, their storage and movement under customs supervision. Customs control zones can be permanent and temporary.
The procedure for creating and designating customs control zones along the customs border is determined by Federal Law No. 311-FZ of November 27, 2010 "On Customs Regulation in the Russian Federation". The creation of other zones of customs control is carried out in the manner determined by the Federal Customs Service of Russia.
Article 16.6. Failure to take action in the event of an accident or force majeure.
Part 1 of this article establishes responsibility for the carrier's failure to take measures to ensure the safety of goods and vehicles in the event of an accident, force majeure or other circumstances that prevent:
- delivery of goods and (or) vehicles to the place of arrival after crossing the customs border of the Russian Federation;
- stopping or landing of a sea (river) or aircraft in designated places;
- transportation of goods in accordance with the customs procedure of internal customs transit or placed under the customs regime of international customs transit.
An accident can be classified as a significant malfunction of the vehicle or an accident. Force majeure refers to extraordinary and unavoidable circumstances, such as natural and social events (natural disasters, wars, etc.).
When deciding on the possibility of holding a person liable for the violation in question, it is taken into account that the measures taken by the carrier to ensure the safety of the delivered goods and vehicles must be adequate in relation to the specific situation and aimed at the actual fulfillment of the established requirements.
The subject of the offense is a person who berths a ship or floating facility under customs control. The person who allowed the berthing is not held liable in accordance with this article.
Article 16.9. Non-delivery, issue (transfer) without the permission of the customs authority, or loss of goods or non-delivery of documents for them.
The requirement to deliver goods to the place of delivery is one of the main requirements of the customs procedure for internal customs transit, as well as the customs regime for international customs transit (Articles 223, 215 of the Customs Code of the Customs Union. At the same time, an obligation is established not only to deliver goods, but also documents for them (responsibility for its non-compliance is defined by part 2 of this article).
The act, expressed in the delivery of goods to the customs control zone, which is not the place of delivery, cannot be qualified under the article in question. Responsibility for it is provided for in article 16.10 of the Code of Administrative Offenses of the Russian Federation. In cases where the goods were delivered to the warehouse of third parties, but were not issued (in fact, they were not transferred and the fact of transfer was not legally registered) and the deadline for their delivery has not expired (the carrier has the opportunity to ensure the delivery of goods under customs control to the place of delivery), there are no signs of an offense under part 1 of article 16.9 of the Code of Administrative Offenses of the Russian Federation.
Responsibility for non-delivery of goods is borne by carriers, including customs carriers (persons who transport goods across the border and transport goods under customs control within the customs territory of the Customs Union or who is responsible for the use of vehicles).
Unlawful under this article is also recognized the issuance (transfer) without the permission of the customs authority or the loss of goods that:
Have the status of being in temporary storage (acquire such status from the moment they are presented at the place of arrival on the territory of the Russian Federation and retain it until release in accordance with the declared customs procedure or the expiration of the deadline for temporary storage);
- placed under the customs procedure of international customs transit;
- stored in a customs warehouse or free warehouse.
The issuance of goods consists in its actual transfer to third parties with or without legal registration of this fact. Loss is understood as the departure of goods from the actual possession of persons who are obliged, in accordance with the requirements of customs legislation, to ensure the safety of goods under customs control. The subject of liability here is the persons who primarily possess (use) the goods in accordance with the declared customs procedures (carrier, persons who temporarily store goods, owners of customs and free warehouses).
Often, the disposal of goods from the possession of carriers occurs as a result of illegal actions of third parties (theft, robbery, etc.). The solution of the issue of the possibility of bringing to administrative responsibility in such a situation is directly related to the establishment of the carrier's guilt in his failure to fulfill his legal obligation to ensure the safety of goods.
Article 16.10. Failure to comply with the procedure for customs transit.
The disposition of this article covers the commission of such acts as violation of the delivery time, the route of transportation, as well as the delivery of goods to a customs control zone other than that defined by the customs authority.
The deadline for transportation is established by article 219 of the Customs Code of the Customs Union. In each specific case of transportation, the term for the delivery of goods is established by the customs authority of departure based on the application of the carrier (forwarder), taking into account the usual period of transportation, the type of transport and the capabilities of the vehicle, its route and other conditions of transportation in the manner prescribed by the Instruction on Customs Operations in Domestic and international customs transit, approved by order of the State Customs Committee of Russia dated 08.09.2003 No. 973 "On Approval of the Instruction on Customs Operations in Domestic and International Customs Transit of Goods".
Routes are determined by the customs office of departure on the basis of the information specified in the transport (transportation) documents. Changing the route is allowed with the written permission of the customs authority of departure or any customs authority located along its route. (Art. 217 of the Labor Code of the Customs Union.
The subject of the offense in question is a carrier or an authorized economic operator; At the same time, in accordance with paragraph 2 of Article 217 of the Customs Code of the Customs Union, the customs authorities are not entitled to determine the route for the delivery of goods by the customs carrier, so the latter are only responsible for non-compliance with the transportation route established by the Government of the Russian Federation.
Article 16.11. Destruction, removal, change or replacement of means of identification.
The above article provides for liability for illegal actions directly with the means of identification.
Responsibility for failure to submit within the established period of documents confirming the information declared in the customs declaration, missing information in the event of an incomplete customs declaration, as well as documents requested by the customs authority during customs control, is established by part 3 of the article in question (in cases of violation of the established deadlines for filing the necessary documents and information precisely when the goods are released before the filing of the customs declaration, such actions are subject to qualification under part 1 of article 16.12 of the Code of Administrative Offenses of the Russian Federation.
At the same time, it is not a violation of the customs rules provided for by paragraph 3 of Article 16.12, failure to submit additional documents and information confirming the declared customs value within the time period established by the customs authority. In this case, the customs authority may independently determine the customs value of the goods.
The acts specified in parts 1 and 3 of article 16.12 of the Code of Administrative Offenses of the Russian Federation become illegal the next day after the expiration of the period established by the customs authority, and in part 2 - from the moment the declaration is submitted (before it there are signs of non-declaring goods).
The subjects of offenses, responsibility for which is provided for in article 16.12 of the Code of Administrative Offenses of the Russian Federation, is the person who is responsible for performing the operations necessary for the release of goods, and after the start of the customs procedure for declaring goods - the declarant (article 186 of the Customs Code of the Customs Union. As a general rule, customs brokers to they are not subject to administrative liability under this article (for non-compliance with their contractual obligations, they can only be held liable in a civil procedure for claims submitted by counterparties).
Article 16.13. . Performing cargo or other operations with goods under customs control without the permission or notification of the customs authority.
Not considered illegal under Article 16.14 are actions expressed in violation of the conditions, restrictions and requirements of a certain customs regime, qualified under Article 16.19 as more special (non-declaration of the customs regime after the expiration of the deadline for storing goods in a customs warehouse, etc.). The subjects of the administrative offense provided for in the article under consideration may be persons placing goods in storage, owners of the respective warehouses, as well as persons performing operations with goods.
Article 16.15. Failure to submit reports to the customs authority.
Responsibility under this article arises for failure to submit reports to the customs authority within the established time limits, as well as for the submission of false reports.
The deadlines for submitting reports and their forms are currently established by the regulatory legal acts of the Federal Customs Service of Russia, which regulate the procedure for applying the relevant customs procedures.
In accordance with the requirements of customs legislation, the obligation to submit reports is established in relation to such categories of persons as customs carriers (on the transportation of goods under customs control
- paragraph 2 of article 97, article 98 of the Customs Code of the Customs Union, owners of temporary storage warehouses (on the storage of goods under customs control - article 26 of the Customs Code of the Customs Union, article 98 of the Customs Code of the Customs Union; customs brokers (on customs operations performed - paragraph 4 of the article, article 98 of the Customs Code CU; See also paragraph 3 of article 16 of the Customs Code of the Customs Union, owners of customs warehouses (on stored goods - paragraph 1 of article 26 of the Customs Code of the Customs Union; owners of duty-free shops (on the receipt and sale of goods in the specified store - paragraph 1 of article 36 of the Labor Code CU, persons carrying out transactions with goods in free customs zones and owners of free warehouses, persons using special simplified procedures, as well as persons using or owning conditionally released goods (about stored, transported, sold, processed or used goods, article 98 of the Customs Code of the Customs Union.
Article 16.16. Violation of the terms of temporary storage of goods.
In accordance with Article 167 of the Customs Code of the Customs Union, temporary storage of goods is a customs procedure in which foreign goods are stored without paying customs duties, taxes and without applying restrictions to them established in accordance with the legislation of the Russian Federation on the state regulation of foreign trade activities, until they are released in accordance with with a certain customs regime or before being placed under another customs procedure (for example, the procedure for internal customs transit).
Temporary storage of goods is carried out in temporary storage warehouses or in other places specified in Chapter 25 of the Customs Code of the Customs Union (consignee's warehouse, vehicles on the railway tracks).
The specified periods begin to be calculated from the day the goods are placed in a temporary storage warehouse or from the day they acquire the status of being in temporary storage (i.e., presentation to the customs authority at the place of arrival or at a warehouse of the recipient of goods that is not a temporary storage warehouse.In this case, if internal customs transit is applied when goods are transported from the place of arrival to the customs territory of the Russian Federation to the location of the customs authority, the calculation of the temporary storage period begins anew from the day the internal customs transit is completed.
Before the expiration of the period of temporary storage, the goods must be released in accordance with a certain customs regime or cleared in accordance with another customs procedure.
Therefore, the commission of the offense in question consists in the failure by the person during the period of temporary storage of all appropriate measures for the release of goods (submission of a customs declaration, payment of customs duties, taxes or ensuring their payment, compliance with the established prohibitions, restrictions, as well as the conditions of placement under the customs regime), due to which, at the time of the expiration of the temporary storage period, the goods are not released in accordance with a certain customs regime and are not placed under a different customs procedure.
Article 16.17. Submission of invalid documents for the release of goods before the submission of the customs declaration.
In accordance with Article 197 of the Customs Code of the Customs Union, the release of goods before the filing of a customs declaration can be carried out provided that the declarant provides commercial or other documents containing information that allows the identification of goods, as well as documents and information confirming compliance with the restrictions established by the legislation of the Russian Federation on state regulation of foreign trade activities , as well as payment of customs duties or ensuring their payment.
The committed act can be qualified under this article and recognized as illegal only in cases where the submitted invalid documents contain information that affects the adoption by the customs authority of the decision to release the goods before the submission of the customs declaration. In this case, the person who submitted invalid documents to the customs authority is held liable.
The subject of this offense is a person who has been granted appropriate benefits during customs clearance, i.e. declarant (but not a customs broker who does not act in the clearance process on his own behalf).
At the same time, the condition for holding a person liable under Article 16.21. it does not constitute bringing another person to liability under other articles of Chapter 16 of the Code of Administrative Offenses of the Russian Federation. In this case, it is sufficient to establish the fact of importation into the customs territory of the Russian Federation of goods and vehicles in violation of customs rules that resulted in non-payment of customs duties, taxes or non-compliance with relevant prohibitions and restrictions, as well as the commission by the person held liable of the specified in Article 16.21. actions with goods.
b) acquisition, use, storage or transportation of conditionally released goods and (or) vehicles, use, transfer for use or possession or disposal in other ways that are allowed in violation of established prohibitions and (or) restrictions.
Cases of conditional release of goods by customs authorities are defined by Article 200 of the Customs Code of the Customs Union. At the same time, the customs legislation establishes restrictions on the use and disposal of such goods when applying certain customs procedures. Responsibility for violation of these restrictions is provided for in Articles 16.19 and 16.20 of the Code of Administrative Offenses of the Russian Federation. Article 16.21. the responsibility of third parties for the acquisition, use, storage or transportation of conditionally released goods, in respect of which offenses have already been committed, provided for by the indicated articles of the Code of Administrative Offenses of the Russian Federation, has been established.
Legal entities and officials, as well as individual entrepreneurs who have committed unlawful acts (for example, a legal entity that has acquired goods imported in addition to customs control). Individuals are not liable under this article (previously there was a widespread practice of bringing citizens to administrative responsibility for the purchase and use of cars illegally imported into Russia by other persons, which is currently excluded).
Article 16.22. Violation of the terms of payment of customs duties.
This article establishes administrative responsibility for non-payment of customs duties and taxes (VAT, excise tax) payable in connection with the movement of goods across the customs border of the Customs Union within the established time limits. Administrative responsibility for non-payment of customs duties does not arise, since this category of customs payments is not listed in the disposition of the article.
The composition of the violation of customs rules under consideration is formed by the following acts:
Violation of the terms for payment of customs duties and taxes in the event of a deferment or installment plan (Article 83 of the Customs Code of the Customs Union;
- non-compliance with the terms of payment of periodic customs payments in respect of goods temporarily imported with partial exemption from customs duties and taxes (See also Article 283 of the Customs Code of the Customs Union);
- non-payment of customs duties and taxes within the established 15-day period (Article 82 of the Customs Code of the Customs Union) in respect of imported goods that were released by the customs authority before this period. In case of failure to release goods that are in temporary storage (the deadline for filing a customs declaration is not observed or violated), a person cannot be held liable for non-payment of customs duties and taxes, since the content of the temporary storage procedure involves the release of goods from their payment within the entire period of temporary storage until the release of goods in accordance with the customs procedure or their placement under another customs procedure. If the customs declaration is not submitted within the period of temporary storage of goods and customs payments are not paid within the established period (and the deadlines for filing a declaration and paying payments are not tied to each other), the person is subject to liability under Article 16.16 of the Code of Administrative Offenses of the Russian Federation for failure to take measures to release goods.
For violation of the terms for payment of customs duties and taxes established in article (Article 82 of the Customs Code of the Customs Union) (in cases of illegal use of conditionally released goods, and in violation of the requirements of customs procedures), as well as for non-fulfillment by the payer of the bill issued by the customs authority in accordance with Article 91 of the Customs Code TS requirements for the payment of customs duties, the person is also not subject to administrative liability. It should be noted that Article 16.22 of the Code of Administrative Offenses of the Russian Federation can be applied only in the case when non-payment of customs payments is an independent offense. In case of non-payment of customs payments due to non-declaration of goods transported across the customs border, or false declaration, the committed act is fully covered by the composition of an administrative offense, responsibility for which is provided for by part 1 or 2 of Article 16.2 of the Code of Administrative Offenses of the Russian Federation, which does not require additional qualification under the article in question.
The subject of liability for an administrative offense, expressed in non-payment of customs duties and taxes, is a person on whom the customs legislation imposes an obligation (but not the right) to pay them (such may be a declarant, a customs broker).
