|
Decree of the General Administration of Customs
No. 159
The Provisions of the Customs of the People’s Republic of China on the Procedures for Handing Administrative Penalty Cases have been
deliberated and adopted at the executive meeting of the General Administration of Customs on February 14, 2007. They are hereby promulgated
and shall enter into force as of July 1, 2007.
Director Mou Xinsheng
March 2, 2007
Provisions of the Customs of the People’s Republic of China on the Procedures for Handing Administrative Penalty Cases
Contents
Chapter I General Rules
Chapter II General Provisions
Chapter III Case Investigation
Section 1 Case Filing
Section 2 Interrogation and Inquiry
Section 3 Check and Examination
Section 4 Testing and Authentication
Section 5 Inquiry about Deposits and Remittances
Section 6 Detention and Security
Section 7 Suspension and Termination of Investigations
Chapter IV Decisions on Administrative Penalty
Section 1 Case Examination
Section 2 Notification, Reexamination and Hearing
Section 3 Treatment Decisions
Chapter V Implementation of Decisions on Administrative Penalty
Chapter VI Procedures for Handling Simple Cases
Chapter VII Supplementary Rules
Chapter I General Rules
Article 1
In accordance with the Administrative Penalty Law of the People’s Republic of China, the Customs Law of the People’s Republic of
China, the Regulation of the Customs of the People’s Republic of China on Implementing Administrative Penalties (hereinafter referred
to as the Regulation on Implementing Customs Administrative Penalties) and other related laws and administrative regulations, the
present Provisions are formulated in order to regulate the procedures for customs houses to dispose of administrative penalty cases
and protect the lawful rights and interests of citizens, legal persons and other organizations.
Article 2
Unless it is otherwise prescribed by any law or administrative regulation, the handling of administrative penalty cases by customs
houses shall be subject to the present Provisions.
For the investigation into smuggling crimes by customs houses and the handling of public security administrative penalty cases by
public security organs, the Law of the People’s Republic of China on Public Security Administrative Penalties and the Provisions
Concerning the Procedures for Handling Administrative Cases by Public Security Organs shall apply.
Article 3
For handling of administrative penalty cases by customs houses, the principles of justness, openness, timeliness and facilitating
people shall be followed.
Article 4
For handling administrative penalty cases in a place where any minority ethnic group or by several minority ethnic groups reside,
the language commonly used in the local place shall be used for interrogating and inquiring.
An interpreter shall be provided where any related party does not know the language commonly used in that place.
Article 5
The state secrets, business secrets, customs secrets or personal privacy it has access to during the process of handling administrative
penalty cases shall be kept secret by the customs.
Chapter II General Provisions
Article 6
Where the customs house finds that any illegal act ought to be handled by any other administrative organ or the criminal investigation
organ, it shall make a case forwarding letter, and forward the case to the competent administrative organ or the criminal investigation
organ to be treated in a timely manner.
Article 7
There shall be at least 2 or customs officers (hereinafter referred to as case handlers) for handling an administrative penalty case
when making investigations and collecting evidence, and their law enforcement certificates shall be shown to the parties involved
or related persons.
Article 8
A case handler shall withdraw under any of the following circumstances, and any party involved or the agent thereof has the right
to apply for his withdrawal:
(1)
He is a party involved or a close relative thereof;
(2)
He himself or any of his close relatives has an interest in the case; or
(3)
He has any other relationship with any party involved, which so may affect impartial disposal of the case.
Article 9
The withdrawal of a case handler shall be determined by the director of the customs house directly under the General Administration
of Customs or the subordinate customs house he belongs to.
Article 10
Where any case handler requires for withdrawal, he shall submit a written application and give the reasons.
Where any circumstance under which a case handler should withdraw arises, but he fails to apply for withdrawal, and the party involved
and the agent thereof also fail to do so, the director of the customs house enpost_titled to determine his withdrawal may order him to
withdraw.
Where any party involved or the agent thereof requires the withdrawal of a case handler, he shall submit an application and give the
reasons. In the case of an oral application, the customs house shall make a record.
Article 11
As regards an withdrawal application submitted by the party involved or the agent thereof, the customs house shall, within 3 working
days, make a decision and notify the decision to the applicant in written form.
In case any party involved or the agent thereof is dissatisfied with the rejection of an withdrawal application by the customs house,
he may, within 3 working days upon receipt of the written notice, apply for review for one time to the customs house that has made
the decision, which shall make a review decision within 3 working days and inform the applicant of the decision.
Article 12
Before a decision on withdrawal is made by the customs house, the case handler may not stop the handling of the administrative penalty
case. Whether the activities relevant to the case as made by the said case handler before the decision on withdrawal is made are
effective or not shall be determined by the customs house that makes the decision on withdrawal by considering the circumstances
of the case.
Article 13
The withdrawal of the person making the testing, appraiser or interpreter shall be subject to Articles 8 through 12 of the present
Provisions.
Article 14
The types of evidence for customs houses to handle administrative penalty cases mainly include:
(1)
documentary evidence;
(2)
physical evidence;
(3)
audio-visual materials, and electronic data;
(4)
witnesses’ testimony;
(5)
testing reports and authentication conclusions;
(6)
statements of the parties involved; and
(7)
record of check and inspection.
Any item of evidence may not be taken as the basis for determining facts before it is verified upon investigation.
Article 15
The physical evidence and documentary evidence as gathered by the customs house shall be original. In case it is really difficult
to gather the originals, the pictures, videos and photocopies thereof sufficiently reflecting the contents or forms of the originals
may be taken, and the customs house may designate or entrust related entities or individuals to appropriately keep the originals.
For collecting the originals of physical evidence and documentary evidence, the customs house shall make a list with the date of collection
indicated, and ask entities or individuals involved to affix their seals or signatures upon confirmation.
For collecting the reproductions, photocopies or transcripts of the original documentary evidence kept by entities or individuals
involved, the sources thereof and the time of collection shall be indicated and the seal or signature of the entity or individual
involved shall be affixed upon verification.
For collecting the pictures and videos of the original physical evidence as kept by entities or individuals involved, a written explanation
about the production process and the storage place of originals shall be attached, and the entities or individuals involved providing
the originals shall affix their seals or signatures on the written explanations.
In case the entities or individuals involved providing the originals refuse to affix their seals or signatures, the case handlers
shall state the circumstance clearly.
Article 16
When collecting electronic data or such audio-visual materials as videos and visuals, etc., the customs house shall collect their
original carriers. In case it is really difficult to gather original carriers, duplicates thereof may be gathered, provided that
production methods, production time, producers, objects of proof as well as the storage places of the original carriers shall be
indicated, and the seals or signatures of the entities or individuals involved shall be affixed upon confirmation.
As regards the gathered duplicates of electronic data or audio-visual materials, etc., the customs house shall carry out the evidence
conversion, timely print electronic data into paper materials if possible, add attach written records to the audio materials’ vocal
contents, and ask entities or individuals involved to affix their seals or signatures upon confirmation.
Article 17
Unless it is otherwise prescribed by any law, where an illegal act has not been found within two years, no administrative penalty
may be imposed any more.
The time limit as prescribed in the preceding paragraph shall be calculated as of the date of the occurrence of the illegal act; while
it shall be calculated as of the day when the illegal act terminates in case the illegal act is in a state of continuity or incessancy.
Article 18
Time limits shall be calculated on the basis of the hour, day, month or year. The hour or day when a time limit starts may not be
included. The first working day after the holiday or rest day shall be the expiration day of the time limit, if the expiration day
is a statutory holiday or rest day.
The time limit shall exclude the time spent on the way. In case the delivery to the post has been conducted prior to the expiry of
a statutory time limit, it may not be regarded as overdue.
Article 19
Where any party involved misses the time limit by virtue of an insurmountable cause or any other justified cause, he can, within
10 days after the said cause is eliminated, apply to the customs house for postponing the time limit, and whether his application
will be permitted shall be determined by the customs house.
Article 20
Administrative legal documents shall be directly served to the addressee himself by the customs house. Where the addressee is an
unavailable citizen, his adult family member living together with him shall sign and accept the legal document; in the case of a
legal person or any other organization, the legal representative of the legal person or the main principal of any other organization,
or the person in charge of the mails of this legal person or organization shall sign and accept it; and where the addressee has entrusted
an agent for accepting legal document, the legal document may be served to this agent for signature and acceptance.
Where an administrative legal document is served directly, the addressee’s signature or seal shall be affixed on the receipt of service
and the date of receipt shall be indicated. The date of receipt indicated in the receipt of service shall be the date of service.
Article 21
Where the addressee himself or his adult family member living together reject accepting an administrative legal document or reject
affixing his signature or seal, the addressor shall invite the witnesses to be present at the scene, explain the situation, illustrate
the causes for refusal and the date on the receipt of service, affix the signatures or seals of themselves and the witnesses, and
leave the administrative legal document at the addressee’s domicile, then the administrative legal document shall be deemed as having
been served.
Article 22
In case it is difficult to directly serve an administrative legal document, the customs house may entrust another customs house to
conduct the service or serve by post.
Where the customs house entrusts another customs house to conduct the service, a power of attorney shall be given to the entrusted
customs house, which shall show the power of attorney to the parties involved.
As regards service by post, a receipt of service shall be attached, and the date of service shall be the date of receipt as indicated
in the receipt of service; and if the receipt of service has not been posted back, the date of service shall be the date of receipt
indicated in the receipt of registered letter or the inquiry letter.
Article 23
As regards the service of administrative legal documents by the customs house to foreigners, stateless persons, foreign enterprises
or organizations having a domicile within the territory of the People’s Republic of China, Articles 20 through 22 of the present
Provisions shall apply.
The customs house shall, if available, serve the administrative legal documents directly to foreigners, stateless persons, foreign
enterprises or organizations with no domicile within the territory of the People’s Republic of China. Where the addressee has entrusted
an agent for accepting legal documents, the customs house may serve directly to the agent or the representative office, or the branch
or business agent enpost_titled to accept the service of legal documents as set up within the territory of the People’s Republic of China.
Where the customs house objects to the entrustment, the power of attorney as notarized by the notary organ may be required to be
provided.
In the case of any difficulty in directly serving an administrative legal document, where the service by post is permitted by the
law of the addressee’s country, the administrative legal document may be served by post.
As regards the service of legal documents to Hong Kong, Macao and Taiwan by the customs house, the service of administrative legal
documents to foreigners, stateless persons, foreign enterprises or organizations with no domicile within the territory of the People’s
Republic of China shall be referred to.
Article 24
Where the addressee is a serviceman, the documents shall be delivered to him via the political organ at or above the regimental level
under his working army.
Where the addressee is imprisoned or reeducated through labor, the documents shall be delivered to him via the prison or the place
of labor reeducation where he is serving his term.
The date of service shall be the date of receipt as filled in the receipt of service by the addressee.
Article 25
Where a document can not be served by those service means as mentioned in Articles 20 through 24 of the present Provisions, the document
shall be served by public notice.
Where served by public notice, the original of the administrative legal document shall be posted on the customs house’s bulletin board.
Where an administrative penalty decision is served by public notice, a public notice thereof shall also be publicized on the newspaper.
In the case of the service by public notice, sixty days after the date when the public notice is publicized, the service shall be
deemed as successful. In the case of the service to a party involved without domicile within the territory of the People’s Republic
of China by public notice, six months after the public notice is publicized, the service shall be deemed as successful.
Where it is otherwise prescribed on the special methods of service in any law or administrative regulation or the international convention
that our country has entered into or acceded to, such provisions shall prevail.
Article 26
In the case of authentic illegal facts and legal basis, an administrative penalty of a fine of 50 Yuan or less (for a natural person)
or 1,000 Yuan or less (for a legal person or any other organization) or a warning may be imposed on the site in accordance with the
related provisions in Section 1 of Chapter V of the Law of the People’s Republic of China on Administrative Penalties.
Chapter III Case Investigation
Section 1 Case Filing
Article 27
Where the customs house finds any act committed by any citizen, legal person or any other organization, for which an administrative
penalty should be given, it shall put the case on file and conduct investigations.
Article 28
Where the clues about an illegal act, which the customs house has accepted or founded, falls within any of the following circumstances
upon verification, the customs house may not put the case on file:
(1)
No illegal fact exist;
(2)
The prescribed time limit for THE punishment of the illegal act has passed; or
(3)
Any other circumstance under which the case should not be put on file.
Where the customs house decides not to put a case on file, a notice of not filing the case shall be made, and timely noticed to the
tip-off maker, the clues-transferring organ or the suspected offender who has surrendered himself to justice.
Section 2 Interrogation and Inquiry
Article 29
The case handlers shall interrogate suspected offenders or inquire witnesses separately, and inform them of their rights and their
legal liabilities for falsely testifying.
A suspected offender or witness shall make statements and provide evidence according to the facts.
Article 30
A suspected offender may be interrogated at his work place or domicile, or at the customs house or a designated place as required
by the case handlers.
The case handlers may inquire a witness at his work place or domicile, or may, if necessary, request him to the customs house or a
designated place for the inquiry.
Article 31
For the interrogation or inquiry, transcripts thereof shall be made.
The items on the transcripts of interrogation or inquiry shall be completely filled in pursuant to the provisions, and the time for
commencing and ending the interrogation or inquiry shall be indicated, and the case handlers shall affix their signatures on the
transcripts.
The transcripts shall be submitted to the person being interrogated or inquired for verification or be read out to him on the site.
After the person being interrogated or inquired have verified the transcripts to be free from any mistake, he shall put his signature
or fingerprint to each page of the transcripts. Where he rejecting affixing his signature or fingerprint, the case handlers shall
record the situation down in the transcripts. Where there is any mistake or omission in the transcripts, the person being interrogated
or inquired shall be allowed to make corrections or supplementations, and his signature or fingerprint shall be affixed at the places
of corrections or supplementations.
Article 32
When a deaf or dumb person is being interrogated or inquired, a person who knows the gestures of the deaf and dumb people shall be
present at the scene, and the transcripts shall indicate the basic information about the deaf or dumb person being interrogated or
inquired.
When a foreigner or stateless person who does not know the language of China is being interrogated or inquired, an interpreter shall
be provided for him; where the person being interrogated or inquired knows the language of China and no interpreter is needed, he
shall issue a written statement, and the case handlers shall indicate it in the transcripts of interrogation or inquiry.
The name, employer and vocation of an interpreter shall be indicated in the transcripts of interrogation or inquiry. And his name
shall be affixed on the transcripts of interrogation or inquiry.
Article 33
When a suspected offender or witness is interrogated or inquired for the first time, the customs house shall inquire his name, birth
date, place of permanent residence, current address, type and number of identity card, employer, educational background, whether
any criminal or administrative penalties has been imposed on him, etc.; and shall inquire his main family members, etc. when necessary.
When a suspected offender or witness under 18, his parent or any other guardian shall be called to be present at the scene. In case
it is impossible to notify them or they fail to be present at the scene after being notified, such situation shall be indicated in
the transcripts.
Article 34
Where a person being interrogated or inquired requires for providing written statements by himself, it shall be allowed, and the
case handlers may also request the person being interrogated or inquired to write down his statements by himself when necessary.
Where a person being interrogated or inquired provides written statements by himself, his signature shall be affixed on his written
statements and the time, and place for writing down the statements as well as the subject for such statement shall be indicated.
After having received the written statements, the case handlers shall record down the date of receipt, and affix their signatures
for confirmation.
Article 35
When interrogation or inquiry is made, audio or video records, in addition to written transcripts, may be made if necessary.
Article 36
The case handlers shall carefully hear the statements of the suspected offender and the witness, and set the record straight.
Any case handler may not obtain statements by such illegal means as violence, menace, lure, fraud, etc..
Section 3 Inspection and Examination
Article 37
When the case handlers check transport vehicles and places or examine goods and articles, transcripts of inspection or examination
shall be made. The transcripts shall bear the signatures of the case handlers and the parties involved or their agents; and where
any party involved or the agent thereof is not present at the scene or rejects affixes his name or seal, the case handlers shall
indicate the situation in the transcripts, and ask the witnesses to sign or seal.
Article 38
When a suspected smuggler is under the case handlers’ inspection, the inspection shall be carried out by two or more case handlers
with identical sex to the person being inspected at a covered place or outside the sight of others than inspectors.
The inspection of the body of a suspected smuggler may be carried out under a doctor’s assistance, and if necessary, a professional
inspection may be made at a medical institution.
Section 4 Testing and Authentication
Article 39
Where, during the process of investigating a case, it is necessary to draw samples of related goods or articles for testing or authentication,
the samples shall be drawn by the customs house or by a testing or authentication institution entrusted by the customs house. At
the time of drawing samples, the parties involved or their agents shall be present at the scene; and where any party involved or
its agent is not present at the scene, witnesses shall be invite by the customs house to be present at the scene.
The samples as drawn shall be sealed for confirmation, and the transcripts on drawing samples shall be made, and the signatures or
seals of the case handlers, the staff members of the testing or authentication institution entrusted by the customs house, the parties
involved or agents thereof as well as the witnesses shall be affixed.
The samples as drawn by the customs house shall be sent to the testing or authentication institution for testing or authentication
in a timely manner.
Article 40
In case related goods or articles will be sold off or discharged by the customs house in the first place, the customs house shall
draw the samples thereof in duplicate or more; and the number of samples and the quantity of each sample shall be enough for determining
the features of related goods or articles.
Article 41
The testing or authentication shall be carried out by the customs house’s testing and authentication institution or any other state-recognized
institution as entrusted by the customs house. Related materials shall be provided by the holder or owner thereof as required for
the testing or authentication.
Article 42
A person conducting the testing or authentication shall issue a testing report or an authentication conclusion after testing or authentication.
The trustor, matters entrusted for testing or authentication, related materials provided for the testing or authentication institution,
basis for testing or authentication, scientific technical means as adopted, testing or authentication institution, instructions about
the qualification of the persons who carry out the testing or authentication, shall be indicated in a testing report or an authentication
conclusion, and signatures of the persons who carry out the testing and authentication as well as the seal of the testing or authentication
institution shall be affixed Where an authentication conclusion is drawn by analysis, the analysis process shall be indicated.
Article 43
Where any party involved is dissatisfied with the testing report or authentication conclusion, he may apply for a new testing or
authentication; and a new testing or authentication shall be conducted if the customs house finds upon examination that there are
justifiable reasons for a new testing or authentication.
The testing or authentication expenses shall be assumed by the customs house. However, when any party involved applies for a new testing
or authentication, the testing or authentication expenses shall be assumed by the customs house if the original testing or authentication
conclusion has been altered,, otherwise, the testing or authentication expenses shall be assumed by the applicant for the new testing
or authentication.
Section 5 Inquiry about Deposits and Remittances
Article 44
In case, when investigating a smuggling case, the case handlers inquire about the deposits or remittances of a suspected entity or
individual in financial institutions or postal service enterprises, the approval of the director of the customs house directly under
the General Administration of Customs or the subordinate customs house authorized by it shall be obtained.
Article 45
When inquiring about the deposits or remittances of a suspected entity or individual in financial institutions or postal service
enterprises, the case handlers shall show their law enforcement identities and present a customs notice on assistance for inquiry.
Section 6 Detention and Security
Article 46
The case handlers shall, when detaining any goods, articles, transport vehicles, other properties, account books, documents or other
materials, show their law enforcement certificates, make a detention voucher and serve it to the parties involved, inform the parties
involved of the reasons and basis for detention as well as their rights on the site.
A detention voucher shall indicate the names, specifications, quantities and weights, etc. of the detained goods, articles, transport
vehicles or other properties. In case it is impossible to determine the name, specifications, quantities and weights, etc. of the
detained goods, articles, transport vehicles or other properties, external features thereof shall be described as particularly as
possible. The signatures or seals of the case handlers, the parties involved or their agents as well as the keeper shall be affixed
to a detention voucher; and where any party involved or the agent thereof is not present at the scene or rejects affixing his signature
or seal, the case handlers shall indicate such situation in the detention voucher, and ask the witnesses to sign or seal.
The goods, articles, transport vehicles, other properties, account books, documents or other materials that have been legally detained
by the customs house may be sealed with a customs mark. The parties involved or their agents and the keeper shall keep them appropriately
after the customs mark has been affixed.
Article 47
The term for the customs house to detain goods, articles, transport vehicles, other properties, account books, documents or other
materials may not exceed one year. For satisfying the needs of investigating a case, the term may, upon approval by the director
of the customs house directly under the General Administration of Customs or the subordinate customs house authorized by it, be prolonged
for one year or less. However, the term for reconsideration or litigation may not be included.
Article 48
Where the detained goods or articles that are dangerous, fresh, perishable, easy to decay, expire or deteriorate or are unfit for
a long-term storage, or whose owner applies for advance sale need to be sold off in advance before the people’s court renders a judgment
or the customs house makes an administrative penalty decision, the approval of the director of the customs house directly under the
General Administration of Customs or the subordinate customs house authorized by it shall be obtained.
The customs house shall, prior to the sale, notify the owner of goods, articles or transport vehicles to be sold off in advance. Where
the notification could not be made prior to the sale, the customs house shall, after they have been sold off, notify it to the owner
of goods, articles or transport vehicles.
Article 49
For discharging the detention of goods, articles, transport vehicles, other properties, account books, documents or other materials,
a notice on discharging detention shall be made by the customs house and served to the parties involved. The signatures or seals
of the case handlers, the parties involved or their agents as well as the keeper shall be affixed to a notice on discharging detention;
and where any party involved or its agent is not present at the scene or rejects affixing his signature or seal, the case handlers
shall indicate such situation in the notice on discharging detention, and ask the witnesses to sign or seal.
Article 50
In case it is impossible or inconvenient to detain the goods, articles or transport vehicles suspected of being involved in a violation,
the case handlers shall make a voucher on receipt of security and serve it to the party involved or the person in charge of transport
vehicles, if the party involved or the person in charge of transport vehicles provides the security to the customs house. The voucher
on receipt of security shall be affixed with the signatures or seals of the case handlers, the parties involved, the person in charge
of transport vehicles or their agents.
After the security is received, the goods, articles or transport vehicles involved may be photographed or videoed for archival filling.
Article 51
Where the customs house discharges the security in accordance with law, it shall make and issue a notice on discharging security
and serve it to the parties involved or the person in charge of transport vehicles. The signatures or seals of the case handlers,
the parties involved, the person in-charge of transport vehicles or their agents as well as the keeper shall be affixed to a notice
on discharging security. Where any party involved, the person in charge of transport vehicles or his agent is not present at the
scene or rejects affixing his signature or seal, the case handlers shall indicate such situation in
1...303132...83Page 31 of 83
| 