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China Customs Q&A: Charge of Security
[2009-04-01]
Q: Under what circumstances can the Customs charge on security?
A: According to the relevant previsions of the Customs Law and Customs Regulations for the Implementation of Administrative Punishment, when the involved goods, materials and means of transportation have the following conditions at the same time, the Customs can charge to the parties or the person responsible for the means of transportation:
I. The involved goods, materials and the means of transportation should be detained by the Customs in accordance with the law.
In the process of the investigating and handling of the administrative law cases, the Customs' administrative detention is aimed at the compulsory acquisition and preservation of evidence and preventing the loss or damage of the illegal smuggling subjects. According to the relevant previsions of the Customs Law and Customs Regulations for the Implementation of Administrative Punishment, the goods, materials and means of transportation that can be detained by the Customs include:
1. the suspected smuggling goods, materials and means of transportation. In the above mentioned case, the detention of HSBC's stock of bonded raw materials and parts for processing trade belong to the implementation of the detention of the suspected smuggling goods. It should be noted that in the law enforcement practice, Customs detention of such goods, materials and means of transport do not need to take the establishment of smuggling as a precondition. As long as the Customs has found that the above-mentioned properties are suspected of smuggling, they could be detained in accordance with legal procedures and time limits As for finally whether the involved act of the parties is smuggling and whether the detained goods are smuggling subjects or are confiscated do not affect the legality of the previously measures taken by the Customs;
2. The Customs' detention of the goods, materials and means of transportation in violation of the Customs Act or related laws and administrative regulations mainly take place in the entry and exit links, for example, when the Customs inspect the goods, materials and means of transportation of Entry and Exit and find them in violation of Customs Law or relevant laws or administrative regulations, the properties can be detained;
3. Other goods, materials and means of transportation that can be detained by the Customs according to other laws and administrative regulations and are discovered in the process of the Custom's law enforcement can be detained.
II. The goods, materials and means of transportation that cannot be detained or are inconvenient to be detained by the Customs
When the above mentioned properties that should be detained in accordance with the law, for some special reasons, cannot be detained or are inconvenient to be detained, the Customs may require the parties concerned or the responsible person to provide with the property equal to the value of the above mentioned property as collateral. The goods that cannot be detained include: 1. In the processing trade (feed processing, materials), the imported raw materials that have been finished as products and in domestic sales; 2. General imported goods and transport equipment that have been resold to an unknown destination or that although whereabouts are known, have been changed hands many times, for the maintenance of the legitimate rights and interests of the takers of good will, should not be detained for further implementation; 3. Goods, materials and transport equipments missing or there is evidence to prove their loss; 4. The illegal subjects have been combined with other legal subjects and cannot be separated, the "inconveniently detained properties” generally refers to dangerous goods, flammable materials, explosive materials and the goods that are inconveniently detained and preserved, such as bulk cargo. For the above-mentioned properties, the Customs cannot detain or have great difficulty in implementing or possibly violate the legitimate rights and interests of the owners.
A: According to the relevant previsions of the Customs Law and Customs Regulations for the Implementation of Administrative Punishment, when the involved goods, materials and means of transportation have the following conditions at the same time, the Customs can charge to the parties or the person responsible for the means of transportation:
I. The involved goods, materials and the means of transportation should be detained by the Customs in accordance with the law.
In the process of the investigating and handling of the administrative law cases, the Customs' administrative detention is aimed at the compulsory acquisition and preservation of evidence and preventing the loss or damage of the illegal smuggling subjects. According to the relevant previsions of the Customs Law and Customs Regulations for the Implementation of Administrative Punishment, the goods, materials and means of transportation that can be detained by the Customs include:
1. the suspected smuggling goods, materials and means of transportation. In the above mentioned case, the detention of HSBC's stock of bonded raw materials and parts for processing trade belong to the implementation of the detention of the suspected smuggling goods. It should be noted that in the law enforcement practice, Customs detention of such goods, materials and means of transport do not need to take the establishment of smuggling as a precondition. As long as the Customs has found that the above-mentioned properties are suspected of smuggling, they could be detained in accordance with legal procedures and time limits As for finally whether the involved act of the parties is smuggling and whether the detained goods are smuggling subjects or are confiscated do not affect the legality of the previously measures taken by the Customs;
2. The Customs' detention of the goods, materials and means of transportation in violation of the Customs Act or related laws and administrative regulations mainly take place in the entry and exit links, for example, when the Customs inspect the goods, materials and means of transportation of Entry and Exit and find them in violation of Customs Law or relevant laws or administrative regulations, the properties can be detained;
3. Other goods, materials and means of transportation that can be detained by the Customs according to other laws and administrative regulations and are discovered in the process of the Custom's law enforcement can be detained.
II. The goods, materials and means of transportation that cannot be detained or are inconvenient to be detained by the Customs
When the above mentioned properties that should be detained in accordance with the law, for some special reasons, cannot be detained or are inconvenient to be detained, the Customs may require the parties concerned or the responsible person to provide with the property equal to the value of the above mentioned property as collateral. The goods that cannot be detained include: 1. In the processing trade (feed processing, materials), the imported raw materials that have been finished as products and in domestic sales; 2. General imported goods and transport equipment that have been resold to an unknown destination or that although whereabouts are known, have been changed hands many times, for the maintenance of the legitimate rights and interests of the takers of good will, should not be detained for further implementation; 3. Goods, materials and transport equipments missing or there is evidence to prove their loss; 4. The illegal subjects have been combined with other legal subjects and cannot be separated, the "inconveniently detained properties” generally refers to dangerous goods, flammable materials, explosive materials and the goods that are inconveniently detained and preserved, such as bulk cargo. For the above-mentioned properties, the Customs cannot detain or have great difficulty in implementing or possibly violate the legitimate rights and interests of the owners.
Source: ETCN
Keywords:Customs security
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