Announcement No. 182 of 2023 of the General Administration of Customs
In order to thoroughly implement the idea of the rule of law, implement the "Opinions of the General Office on Further Standardizing the Formulation and Management of Administrative Discretion Benchmarks" (Guo Ban Fa 2022 No. 27), standardize the exercise of the discretionary power of customs administrative punishment, and protect the legitimate rights and interests of citizens, legal persons or other organizations, in accordance with the "Administrative Punishment Law of the People's Republic of China", "Customs Law of the People's Republic of China", "Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste", and "Regulations of the People's Republic of China on the Implementation of Customs Administrative Penalties" As well as the provisions of relevant laws, administrative regulations, and customs rules, the General Administration of Customs has formulated the "Discretionary Criteria for Administrative Penalties of the Customs of the People's Republic of China (I)", which is hereby promulgated.
The announcement is hereby made. Customs.
December 11, 2023.
Discretionary Criteria for Administrative Penalties of the Customs of the People's Republic of China (1).
Chapter I: General Provisions
Article 1 In order to handle customs administrative punishment cases in accordance with the law, standardize the exercise of the discretionary power of customs administrative punishment, and protect the lawful rights and interests of citizens, legal persons or other organizations, in accordance with the "Administrative Punishment Law of the People's Republic of China" (hereinafter referred to as the "Administrative Punishment Law"), the Customs Law of the People's Republic of China (hereinafter referred to as the "Customs Law"), the Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste (hereinafter referred to as the "Solid Waste Prevention and Control Law"), and the Regulations of the People's Republic of China on the Implementation of Customs Administrative Penalties (hereinafter referred to as the "Customs Law"), the Regulations of the People's Republic of China on the Implementation of Customs Administrative Penalties (hereinafter referred to as the "Administrative Punishment Law"), the Customs Law of the People's Republic of China (hereinafter referred to as the "Customs Law"), the Law Regulations on the Implementation of Customs Administrative Penalties), the Procedural Provisions of the Customs of the People's Republic of China on Handling Administrative Punishment Cases (hereinafter referred to as the "Procedural Provisions"), and the provisions of relevant laws, administrative regulations, and customs rules, these discretionary standards are formulated.
Article 2 These discretionary standards apply to customs administrative punishment cases handled in accordance with the Customs Law, the Law on the Prevention and Control of Solid Waste, the Regulations on the Implementation of Customs Administrative Penalties, and relevant laws, administrative regulations, and customs rules, except for administrative punishment cases of customs inspection and quarantine and administrative punishment cases of customs protection of intellectual property rights.
Article 3 The Customs shall impose administrative penalties on the basis of facts and the law as the criterion, and the decision shall be commensurate with the facts, nature, circumstances and degree of harm to society of the illegal acts.
Article 4 For illegal acts jointly committed by two or more parties, the circumstances and responsibilities shall be distinguished, and administrative penalties shall be imposed separately in accordance with the discretionary order and penalty standards stipulated in the discretionary standards of the Customs.
Article 5: Where parties have multiple different punishment circumstances for the same illegal conduct at the same time, a disposition decision shall be made in accordance with the principles provided for in article 3 of these discretionary standards on a comprehensive basis.
Chapter II: Discretionary Order
Article 6: These discretionary standards set five levels of discretion: no administrative punishment, commuted administrative punishment, lighter administrative punishment, ordinary administrative punishment, and heavier administrative punishment.
Where there are no circumstances of not giving administrative punishments, commuting administrative punishments, mitigating administrative punishments, or giving heavier administrative punishments, punishment is to be given in accordance with the provisions of ordinary administrative punishments.
Article 7: In any of the following circumstances, parties are not to be given administrative punishments:
1) Minors under the age of 14 have violated the law;
2) Mentally ill persons or intellectually disabled persons who have violated the law when they are unable to recognize or control their own behavior;
3) The parties have evidence sufficient to prove that there is no subjective fault. Where laws and administrative regulations provide otherwise, follow those provisions;
4) The illegal conduct has not been discovered within two years;Where citizens' lives, health, safety, or financial security are involved and there are harmful consequences, the above period is extended to five years. Except as otherwise provided by law;
5) Complying with the provisions of the List of Items for Exemption from Punishment for Minor Violations (1) of the Customs Administrative Punishment (see Annex 1 for details), or other illegal acts that are minor and corrected in a timely manner, and have not caused harmful consequences;
6) Other areas where administrative punishments shall not be given in accordance with law.
If the provisions of the List of Items for Exemption from Punishment for the First Violation of Customs Administrative Punishment (1) (see Annex 2 for details) are met, or other first-time violations with minor harmful consequences and timely corrections, the administrative penalty may not be imposed.
Article 8: In any of the following circumstances, the administrative punishment is to be commuted:
1) Minors between the ages of 14 and 16 have violated the law;
2) Mentally ill persons or intellectually disabled persons who have not completely lost the ability to recognize or control their own conduct have committed illegal acts;
3) Being coerced or tricked by others into committing illegal acts;
4) Voluntarily confessing illegal acts that the Customs has not yet grasped;
5) Cooperate with the Customs to investigate and deal with illegal acts and have meritorious service;
6) Taking the initiative to eliminate or mitigate the harmful consequences before the Customs discovers the illegal acts;
7) The harmful consequences of the illegal conduct are relatively minor, and any of the following circumstances are met:
1. It affects the management of national permits, but does not affect the restrictive management of entry and exit of the state;
2. Affecting the collection of national taxes, and the proportion of tax evasion accounts for less than 10% of the tax payable, and the tax evasion of units is less than 250,000 yuan or the tax evasion of individual tax is less than 50,000 yuan;
3. Affect the national export tax rebate management, and may overtax rebate less than 10% of the proportion of the application;
4. It shall be handled in accordance with the provisions of Paragraph 1 of Article 18 of the Regulations on the Implementation of Customs Administrative Penalties, but it does not affect the state's prohibitive or restrictive management of entry and exit, tax collection, foreign exchange management, and export tax rebate management;
8) Cases of illegal import of solid waste disposed of in accordance with the provisions of Articles 115 and 116 of the Law on the Prevention and Control of Solid Waste, meeting any of the following circumstances:
1. The quantity of solid waste is less than 3 tons or the quantity of hazardous waste is less than 300 kilograms, which is sporadic or small, and the party concerned can return the solid waste out of the country;
2. The party concerned returns the solid waste out of the country within two months after the customs orders the return of the waste;
9) Other administrative punishments that shall be commuted in accordance with law.
Article 9: In any of the following circumstances, parties are to be given a lighter administrative punishment:
1) Minors who have reached the age of 16 but are not yet 18 years old have violated the law;
2) Cooperating with the Customs in the investigation and handling of illegal acts, and admitting mistakes and accepting punishment;
3) Taking the initiative to eliminate or mitigate the harmful consequences after the Customs discovers the illegal acts;
4) The harmful consequences of the illegal conduct are relatively minor, and any of the following circumstances are met:
1. Affecting the collection of national taxes, and the tax evasion accounts for less than 10% but not more than 20% of the tax payable, and the tax is between 250,000 and 500,000 yuan or the tax is between 50,000 and 100,000 yuan
2. The party entering or leaving the country for the first time carries articles in violation of customs supervision regulations, except for smuggling or carrying goods prohibited by the state;
5) In the case of illegal import of solid waste handled in accordance with the provisions of Articles 115 and 116 of the Law on the Prevention and Control of Solid Waste, the party concerned shall return the solid waste out of the country within four months after the customs order the return of the solid waste;
6) Other cases where a lighter administrative punishment shall be given in accordance with law.
Article 10: In any of the following circumstances, parties are to be given heavier administrative punishments:
1) The use of special equipment, mezzanine, or covert compartments to carry out smuggling;
2) Committing smuggling again within two years after being sentenced to a criminal penalty for smuggling or being subject to an administrative penalty by the Customs;
3) Committing the same violation of customs supervision regulations within one year after being administratively punished by the customs for violating the customs supervision provisions;
4) Resisting or obstructing customs law enforcement by means of violence, threats, providing false statements, falsification, concealment, destruction of evidentiary materials, etc.;
5) The nature of the illegal conduct is heinous;
6) Cases of illegal import of solid waste handled in accordance with the provisions of Articles 115 and 116 of the "Solid Waste Prevention and Control Law" meet any of the following circumstances:
1. The party concerned refuses to return the goods after being ordered to return the goods by the customs;
2. The quantity of solid waste illegally imported into the territory reaches 200 tons or more, or the quantity of hazardous waste reaches 20 tons or more;
3. Solid waste has been imported into the territory and caused environmental pollution;
7) Other cases where heavier administrative punishments shall be given in accordance with law.
Chapter III: Sentencing Standards
Article 11: In cases of smuggling, smuggled goods, articles, and unlawful gains are confiscated, and a fine may be imposed concurrently. Vehicles of transport used exclusively for smuggling or goods or articles used to cover smuggling, and means of transport used for smuggling three or more times within two years, or goods or articles used to cover smuggling, shall be confiscated. Where it is impossible or inconvenient to confiscate the smuggled goods, articles, or smuggled means of transport, the equivalent value of the above-mentioned goods, articles, or smuggled means of transport shall be recovered.
Smuggling acts of evading the tax payable by false concealment or quantity but not evading the management of permits, the smuggled goods and articles are the goods and articles corresponding to the part of the false and concealed report, excluding the goods and articles that have been truthfully declared and the part that has not been falsely reported.
Smuggling with heavier administrative punishment shall be fined in accordance with law.
Article 12 In cases of violation of customs supervision regulations based on the value of illegal goods, the penalty shall be imposed in accordance with the following provisions:
1) If the administrative penalty is reduced, a fine of less than 5% of the value of the illegal goods shall be imposed;
2) If the administrative punishment is mitigated, a fine of not less than 5% but less than 10% of the value of the illegal goods shall be imposed;
3) In the case of general administrative punishment, a fine of more than 10% but less than 15% of the value of the illegal goods shall be imposed;
4) Where a heavier administrative punishment is given, a fine of not less than 15 percent but not more than 30 percent of the value of the illegal goods shall be imposed.
Article 13 Cases of violation of customs supervision regulations based on the value of illegal goods shall be punished in accordance with the following provisions:
1) Where the administrative punishment is commuted, a fine of less than 3% of the value of the illegal items shall be imposed;
2) Where the administrative punishment is mitigated, a fine of more than 3% but less than 6% of the value of the illegal goods shall be imposed;
3) Where there is a general administrative punishment, a fine of between 6% and 10% of the value of the illegal items shall be imposed;
4) Where heavier administrative punishment is imposed, a fine of between 10% and 20% of the value of the illegal items is to be imposed.
Article 14 Cases of violation of customs supervision regulations that are punished on the basis of tax failure shall be punished in accordance with the following provisions:
1) Where the administrative penalty is commuted, a fine of less than 30% of the tax is not paid;
2) Where the administrative punishment is mitigated, a fine of not less than 30% but less than 60% of the tax evaded shall be imposed;
3) Where there is a general administrative penalty, a fine of more than 60% of the tax paid but less than one time shall be imposed;
4) Where heavier administrative punishment is given, a fine of between 1 and 2 times the amount of tax evaded shall be imposed.
Article 15 In cases handled in accordance with the provisions of Article 17 of the Regulations on the Implementation of Customs Administrative Penalties, the penalty standards for the illegal acts provided for in Paragraphs 1 to 5 of Article 15 of the Regulations on the Implementation of Customs Administrative Penalties may be handled in accordance with the standards for the punishment of the illegal acts in accordance with the different harmful consequences caused by the violations, provided that the maximum amount of fines shall be less than 10% of the value of the illegal goods.
Article 16 In the case of false declaration affecting the administration of export tax rebates of the state, a decision shall be made in accordance with the principles stipulated in Article 3 of these discretionary standards, taking into account the factors such as the ** of the goods declared falsely and the export tax rebate rate.
Article 17: In cases of illegal import of solid waste handled in accordance with the provisions of articles 115 and 116 of the "Law on the Prevention and Control of Solid Waste", fines shall be imposed in accordance with the following provisions:
1) Where the administrative punishment is commuted, a fine of less than 500,000 yuan is to be given;
2) Where the administrative punishment is mitigated, a fine of between 500,000 and 1,000,000 RMB is to be given;
3) Where there is an ordinary administrative punishment, a fine of between 1,000,000 and 2,500,000 RMB is to be given;
4) Where heavier administrative punishments are given, a fine of between 2.5 million and 5,000,000 RMB is to be given.
Article 18 In cases of summary procedures and administrative punishments, fines shall be imposed in accordance with the provisions of the Discretionary Criteria for Customs Summary Procedures and Administrative Punishment Cases (1) (see Annex 3 for details);Where there are no provisions in the "Discretionary Criteria for Customs Summary Procedures and Administrative Punishment Cases (1)", it shall be handled in accordance with the relevant provisions of these Discretionary Standards.
Chapter IV: Supplementary Provisions
Article 19 The meanings of the following terms in these Discretionary Standards:
Admitting mistakes and accepting punishment refers to the parties voluntarily and truthfully confessing their illegal acts, having no objections to the facts of the violation determined by the customs, and expressing their willingness to accept the customs punishment in writing.
Cooperating with the Customs in the investigation and handling of illegal acts means that the parties concerned provide assistance to the Customs in investigating and dealing with the relevant illegal acts in order to facilitate the investigation and handling of the case, and provide corresponding guarantees to the Customs in accordance with the law.
"Meritorious service" refers to reporting or providing clues on the illegal acts or illegal cases of others that are not in the hands of the Customs and should be handled by the Customs, which are verified to be true after investigation.
Penalty base refers to the base used to calculate the amount of fine.
The value of illegal goods subject to the penalties provided for in Paragraphs 1 and 2 of Article 15 of the Regulations on the Implementation of Customs Administrative Penalties refers to the actual value of imported and exported goods. If the quantity or ** declaration is false, the value of the illegal goods refers to the difference between the declared value of the goods and the actual value of the goods.
Article 20: In these discretionary standards, "above, below, and within" includes this number, and "unsatisfactory" does not include this number.
Article 21 The General Administration of Customs shall be responsible for the interpretation of these discretionary standards.
Article 22: These discretionary standards take effect on January 1, 2024.