1. Judgment and analysis of the first violation

• "First offense" is similar to "first offense" in the sense of criminal law. It can be read literally and can be interpreted as "the first violation of the law." Refers to the first violation of customs regulations and was filed for investigation.

• When the consignee or consignor has been filed for investigation by the customs before, but the case is eventually withdrawn and left unhandled, it should not be considered as having illegal experience; therefore, the standard of "initial violation" means that it has not been punished by the customs administration.

But are the following situations considered as "first violations"? 

1. The consignee and consignor have been “decided not to impose administrative punishment” by the customs, is it considered as “the first violation of the law”?

2. After the consignee or consignor has been issued an "administrative penalty decision" by the industry and commerce or taxation department, the case is filed by the customs for investigation for suspected violation of customs supervision regulations, is it considered the first violation?

3. After the consignee or consignor is punished by the customs for transferring the tax-reduction equipment for other purposes, and the customs has filed an investigation for the unauthorized exchange of bonded materials for processing trade, is it considered a "first violation"?

4. If the consignee or consignor was fined 1,000 yuan for affecting customs statistics 10 years ago, and 10 years later he was involved in other customs violations, is it considered a "first violation"?

From relevant sources, we understand that the criteria for judging the “initial violation” of customs administrative penalty cases mainly depend on whether the consignor has violated customs laws and regulations for the first time. The "Administrative Punishment Decision" made by the Customs is considered "the first violation of the law."

*  If the consignee or consignor has been investigated by the customs, and the customs has made a "decision not to impose administrative punishment", it cannot be regarded as a "first violation".

*  If the consignee and consignor had been made an "administrative penalty decision" by the customs many years ago due to a certain violation, and the reason for this violation is completely different from the previous one, it cannot be regarded as a "first violation".

*  If the consignee or consignor has been made an "administrative penalty decision" by an administrative agency other than the customs, there is no necessary connection with the violation of customs laws and regulations. It can be counted as a "first violation".

Judgment analysis of what violations are no-fault behaviors

A. Is the classification and declaration error of the consignee and consignor a subjective fault?

Commodity classification is a basic business skill of import and export enterprises. Every enterprise has the obligation to correctly declare commodity classification to the customs. But what is the correct commodity classification? The customs has not published (in fact, it is impossible to publish) the correct commodity classification list, but only published the commodity classification rules, tariff provisions, item annotations, classification decisions and classification rulings, etc., and enterprises make their own judgments and report to the customs according to the above rules. Declare the commodity classification. Since a small number of commodities are clearly listed in the classification documents published by the customs such as tariff provisions, item notes, classification decisions, classification rulings, etc., that is, the customs clearly stipulates the correct classification of the commodity, and most of the commodities are There is no clear listing in the above-mentioned documents, and the classification of commodities can only be determined by reasoning based on the rules of commodity classification. Therefore, these commodities may not have clear commodity classifications.

For the former, there are clearly defined commodity classifications. The consignee and consignor made a mistake in the declaration. It should be declared correctly but not declared correctly. The enterprise may be deliberate or negligent, and subjectively at fault. The customs will deal with this kind of wrong declaration. It is beyond reproach to impose certain penalties in accordance with the law to maintain the order of customs supervision.

If there are no clearly defined commodity classification matters, different consignees and consignees, different customs, or even the same consignee or consignor or different individuals in the same customs, may have different judgments on the classification of the same commodity. , There are different product classification results. It is obviously unreasonable and inappropriate to determine that the party has a subjective fault just because the company’s commodity classification declaration is different from the final classification judgment of the customs, which constitutes a violation of the classification declaration. Due to the diversity of structure, composition, function, and use of most commodities and the complexity of classification technology, these commodities are not clearly defined commodity classification matters. Enterprise declaration errors are technical classification errors, not subjective faults. No administrative penalty.

Therefore, some errors in the classification and declaration of the consignee and consignor are subjective faults, which constitute violations of false declarations, and should be given administrative penalties according to law; while others have no subjective faults, which are not violations of false declarations, and should not be administered administratively. Punishment.

B. The trade agent declares to the customs based on the wrong information provided by the overseas customer. Is it a subjective fault?

In the trade of import and export goods, some shippers make declarations on their own, while others entrust others to declare declarations; as trade agents, they are directly related to the customs’ administrative law and are also taxpayers of import and export goods in the sense of the Customs Law. Therefore, if the declaration of import and export goods is false and illegal, the customs will bear the brunt of the trade agent of the import and export goods as the party to the administrative penalty. However, if the false declaration is caused by the wrong information provided by the cargo owner, and the agent has fulfilled reasonable inspection obligations, then, according to the principle of fault liability, the agent has no subjective fault, and if the cargo owner has a subjective fault, the owner’s law shall be investigated Liability, the legal responsibility of the agent should not be investigated.

C. There are errors in the declaration of royalties, special relationships, and price transfers. Is it a subjective fault?

For royalties, the customs is concerned about the royalties that are imported and used for domestic sales of goods.

At the time of import declaration of related goods, the amount of royalties paid to the outside has not been determined, and the enterprise cannot truthfully declare to the customs. It is necessary to summarize and supplement the tax declaration after the import of the goods. Therefore, failure to declare the specific amount of royalties when the relevant goods are imported cannot be regarded as subjective fault by the parties, and it does not constitute a violation of false price declarations;

However, when the customs requires the enterprise to make a confirmatory declaration of "whether to pay royalties" on the customs declaration form, if the enterprise fills in as "no" and fails to declare truthfully, it may be deemed as subjective fault by the customs.

  In the same way, for the "special relationship" and "price transfer" elements on the customs declaration form that require the enterprise to make a confirmatory declaration, if the enterprise fills in as "No", but the fact exists, it may be deemed as subjective fault by the customs.

D. Is the shortage of bonded materials without justifiable reasons a subjective fault?

The focus of customs supervision on the processing trade business of enterprises is the destination of imported bonded materials, which is managed by the bonded hand/account book balance sheet and the finished product BOM sheet.

If the customs finds that the consignee or consignor transfers or sells bonded materials without authorization, it shall be punished qualitatively as the unauthorized transfer of bonded materials; if it finds that the bonded materials and non-bonded materials have been exchanged without authorization, it shall be regarded as the violation of unauthorized exchange of bonded goods If it is found that the company has not gone through customs procedures for outsourcing bonded materials for processing, it shall be dealt with as an illegal act of delivering bonded materials without authorization. The above-mentioned circumstances are all due to the subjective fault of the parties, and administrative punishments are imposed on the parties.

However, when the customs does not find out the destination of the bonded materials of the company, but only finds out the bonded materials and disappears from customs supervision, is this behavior of the company (actually not a behavior, but a state) is subjective fault?

Bonded materials are missing, they may be sold, they may be given to others, or they may be exchanged, causing the bonded materials to be out of customs supervision, but the customs failed to find out the illegal facts of the transfer or exchange, so it could not be determined. The parties constituted an illegal act of unauthorized transfer or exchange of bonded materials.

If the bonded materials are short for unjustified reasons, and the parties cannot prove that the destiny of these missing bonded materials is legitimate and lawful, the customs will not be able to deal with it as “if the parties have sufficient evidence to prove that they have no subjective fault, no administrative penalty shall be imposed”, but only Determined to constitute a violation. 

Therefore, the Customs’ “no fault, no punishment” legal provisions are not applicable to cases where the bonded materials are in short supply and violate the regulations .

The above analysis of the two scenarios in the new "Regulations on Procedures for Customs Case Handling" that may not be subject to administrative penalties. Special statement:

This analysis is only the author's personal thoughts for academic discussion; if anything is wrong, please forgive me.