Provisions of the General Administration of Customs of the People’s Republic of China on the Procedures for Handling Administrative Penalty Cases, which were adopted after deliberations at the Executive Meeting of the General Administration of Customs on February 14, 2007, are hereby promulgated and shall be effective as of July 1, 2007.
Mu Xinsheng
Minister
General Administration of Customs
March 2, 2007
Provisions of the General Administration of Customs of the People’s Republic of China on Procedures for Handling Administrative Penalty Cases
(Adopted at the Executive Meeting of the General Administration of Customs on February 14, 2007, promulgated by Decree No.159 of the General Administration of Customs of the People’s Republic of China on March 2, 2007, and effective as of July 1, 2007)
Contents:
Chapter I General Rules
Chapter II General Provisions
Chapter III Investigation into Cases
Section 1 Filing a case
Section 2 Interrogation and Inquiry
Section 3 Search and Examination
Section 4 Laboratory Testing and Authentication
Section 5 Inquiry about Deposits and Remittances
Section 6 Detention and Guarantee
Section 7 Discontinuation and Conclusion of Investigation
Chapter IV Decision of Customs Administrative Penalty
Section 1 Case Review
Section 2 Notification, Reconsideration and Hearing
Section 3 Decision
Chapter V Execution of Administrative Penalty Decision
Chapter VI Summary Procedure
Chapter VII Supplementary Provisions
Chapter I General Rules
Article 1 These Provisions are formulated pursuant to the provisions of the Administrative Penalty Law of the People’s Republic of China, the Customs Law of the People’s Republic of China, the Regulations of the People’s Republic of China on Implementing Customs Administrative Penalty (hereinafter referred to as the Regulations on Implementing Customs Administrative Penalty) and other related laws and administrative regulations for the purposes of standardizing the procedures for Customs to handle administrative penalty cases and protecting the legitimate rights and interests of citizens, legal persons and other organizations.
Article 2 Unless otherwise provided for in other laws and administrative regulations, these Provisions shall be applicable to the procedures of Customs administrative penalty cases.
Where Customs police departments responsible for investigation of smuggling crimes are handling penalty cases for public security, they shall follow the procedures prescribed in the Law of the People’s Republic of China on Administrative Penalties for Public Security and the Procedural Provisions for the Handling of Administrative Cases by Public Security Departments.
Article 3 Customs shall handle administrative penalty cases pursuant to the principles of justice, openness, promptness and convenience for the people.
Article 4 In handling administrative penalty cases in an area inhabited by an ethnic group in a concentrated manner or an area where a number of ethnic groups live together, Customs shall conduct the interrogation and inquiry in the spoken language commonly used in the area.
Interpretation or translation service shall be provided for the party concerned who is not familiar with the spoken or written language commonly used in the area.
Article 5 Customs shall keep the confidentiality of State secrets, commercial secrets, Customs work secrets or personal privacy involved in the course of the handling of administrative penalty cases.
Chapter II General Provisions
Article 6 Upon discovering an illegal act which shall be dealt with by another administrative body or a criminal investigation agency according to law, Customs shall make a letter of case referral, and refer the case to the relevant administrative body or criminal investigation agency for disposition.
Article 7 In conducting investigations and collecting evidence, there shall be at least two Customs officers (hereinafter referred to as the officers) present at the same time to handle administrative penalty cases, who shall show their law enforcement identity certificates to the parties concerned or relevant persons.
Article 8 If any of the following circumstances occurs to any of the officers, that officer shall voluntarily withdraw, and any party concerned or the representative of the party concerned shall have the right to demand his withdrawal:
(1) if he is a party or a near relative of a party to the case;
(2) if he or a near relative of his has an interest in the case; or
(3) if he has any other relations with a party to the case that might affect the impartiality of the handling of the case.
Article 9 The withdrawal of the officer shall be decided by the director general of the regional Customs or the director of the local Customs he works with.
Article 10 Where an officer demands a withdrawal voluntarily, he shall make the application in writing and state the reasons for the withdrawal.
Where one of the circumstances for withdrawal has occurred to an officer, but he didn’t apply for withdrawal, neither did any of the parties concerned or their representatives demand his withdrawal, the director general of the regional Customs or the director of the local Customs who can determine the withdrawal may order his withdrawal.
Where a party concerned or his representative demands a withdrawal of the officer(s), a written application shall be submitted to explain the reasons therefor. Where the application is made orally, it shall be recorded by Customs.
Article 11 Customs shall make an approval or disapproval decision regarding the withdrawal demanded by the party concerned or the representative of the party concerned and notify the applicant in writing within three (3) working days.
Where Customs has rejected the withdrawal application, and the party concerned or the representative of the party concerned dissents from such a disapproval decision, the party or the representative may apply to the Customs making the decision for reconsideration within three (3) working days as of the date of receipt of the written notification delivered by Customs. The Customs which has issued the disapproval decision shall make a reconsideration decision and notify the applicant in writing within three (3) working days.
Article 12 Before a decision is made by Customs on his withdrawal, the officer shall not suspend handling administrative penalty cases, and the validity of activities he has conducted in relation to the case before the decision shall be decided by the Customs which has made the decision of withdrawal, in light of the situations of the case.
Article 13 The withdrawal of persons making the laboratory testing and authentication, interpreters and translators shall be governed by Articles 8 to 12 of these Provisions.
Article 14 The categories of evidence in Customs administrative penalty cases are:
(1) documentary evidence;
(2) physical evidence ;
(3) audio-visual materials and electronic data;
(4) testimony of witnesses;
(5) laboratory testing reports and authentication conclusions;
(6) statements of the party concerned; and
(7) records of searches and examinations.
Any evidence shall be verified before it can be used as the basis for ascertainment of case facts.
Article 15 Physical evidence and documentary evidence collected by Customs shall be the original. Where it is truly difficult to collect the original, photographs, video recordings or reproductions adequate to reflect the contents of the original documents or appearance of the original objects may be made, and relevant bodies or individuals may be designated or entrusted to properly keep the original objects or documents.
When the original of physical evidence and documentary evidence are collected, a detailed list shall be made, on which the date of collection shall be indicated and the relevant bodies or individuals shall affix their seals or sign their names after confirmation.
When the reproduced copies, photolithographic copies or transcribed copies of the original documentary evidence kept by the relevant bodies or individuals are collected, the source and the date of collection shall be indicated and the relevant bodies or individuals providing them shall affix their seals or sign their names after confirmation.
When the photographs or video recordings of the original physical evidence kept by the relevant bodies or individuals are collected, a written description shall be made to describe the procedure of making and the places where the original objects are kept, on which the relevant bodies or individuals providing them shall affix their seals or sign their names.
Where the relevant bodies or individuals providing them refuse to seal or sign, the officers shall note this situation in the list or written description.
Article 16 In collecting electronic data or audio-visual materials such as sound recordings and video recordings, Customs shall collect the original carrier. Where it is truly difficult to collect the original carrier, Customs may collect their reproduced copies, and note the method and time of reproduction, the reproducer, the objects of proof and the places where the original carrier are kept, and the relevant bodies or individuals shall affix their seals or sign their names after confirmation.
Customs shall transform the reproduced copies of the electronic data or audio-visual materials like sound recordings and video recordings for preservation of evidence. Electronic data which can be transformed into paper materials shall be printed promptly, and sound recordings shall be attached with a verbatim record of the contents contained therein, on both of which the relevant bodies or individuals shall affix their seals or sign their names after confirmation.
Article 17 Unless otherwise provided for by law, for illegal acts undetected within two (2) years, administrative penalty shall not be imposed.
The limitation period described in the preceding paragraph shall be counted from the date the act of violation is committed. Where the illegal act is of a continuing or continuous nature, it shall be counted from the date the act is terminated.
Article 18 Time periods shall be calculated by the hour, the day, the month and the year. The hour and day from which a time period begins shall not be counted as within the time period. If the last day of a time period falls on a legal holiday or a legal rest day, the first working day after that day shall be deemed as the last day of the time limit.
Time periods shall not include time en route. If mailed before the expiration of the time limit, it shall not be regarded as overdue.
Article 19 When a party concerned misses a deadline due to force majeure or for other justifiable reasons, he may, within 10 days after the said cause is eliminated, apply to Customs for extending the time period. Decision to grant the extension or not shall be at the discretion of Customs.
Article 20 In serving administrative legal documents, Customs shall serve the documents directly on the person that the documents are intended for. Where that person is a citizen, the documents shall, in case of his absence, be received by an adult member of his family living with him with a signature to acknowledge receipt. Where that person is a legal person or any other organization, the documents shall be received, with a signature to acknowledge receipt, by the legal representative of the legal person, the principal responsible person of the organization, or a person working with the legal person or the organization responsible for receiving such documents. Where the person that the documents are intended for has designated another person to receive the documents, the documents may be received by the person designated with a signature to acknowledge receipt.
Where administrative legal documents are served directly, the name and seal of the person that the documents are intended shall be put on the receipt of service, with the date of receipt noted. The date of receipt noted on the receipt of service shall be regarded as the date of service.
Article 21 If the person that the documents are intended for or the adult family member living with him refuses to receive and sign the administrative legal documents, the document server shall ask for the presence of a witnesses, explain the situation to the witness, and record the particulars of the refusal and the date on the receipt of service, on which the document server and the witness shall affix their seals or sign their names. The documents shall then be left at the domicile of the person that the documents are intended for, and the service shall be deemed completed.
Article 22 Where it is difficult for a Customs to serve the administrative legal documents directly, the Customs may entrust another Customs to serve the documents on its behalf, or serve them by mail.
Where a Customs entrusts another Customs to serve the documents, the entrusting Customs shall provide the trustee Customs with documents of entrustment which shall then be shown to the party concerned by the trustee Customs.
Where administrative legal documents are served by mail, they shall be accompanied by a receipt of service, and the receiving date noted on the receipt of service shall be regarded as the date of service of the documents. Where the receipt of service is not mailed back, the date noted on the receipt for the registered letter sending the documents or the receipt of mail inquiry feedback shall be regarded as the date of service of the documents.
Article 23 Service of administrative legal documents to foreigners, Stateless persons, foreign enterprises or organizations that have a domicile within the territory of the People’s Republic of China, shall be governed by the provisions of Articles 20 through to 22 of these Provisions.
For foreigners, Stateless persons, foreign enterprises or organizations that have no domicile within the territory of the People’s Republic of China, wherever possible, Customs shall serve the administrative legal documents directly. Where the addressee has an agent authorized to receive the documents, Customs may serve the documents directly on the agent or on the representative office or the branch or business agent that has the authorization to receive the documents as established within the territory of the People’s Republic of China. Where Customs has doubts about the entrustment, it may ask the agent to present the power of attorney as notarized by a notary service.
Where it is difficult to serve the administrative legal documents directly and the law of the addressee’s country permits the service by mail, Customs may serve the documents by mail.
Service of legal documents by Customs to Hong Kong, Macao and Taiwan of China shall be effected by referring to the service of legal documents to foreigners, Stateless persons, foreign enterprises or organizations that have no domicile within the territory of the People’s Republic of China.
Article 24 Where the addressee is a serviceman, the documents shall be forwarded to him via the political department at or above the regimental level under the army where he serves.
Where the addressee is imprisoned or reeducated through labor, the documents shall be forwarded to him via the prison or the place of labor reformation or labor reeducation where he is serving his term.
The date noted on the receipt of service by the addressee shall be regarded as the date of service of the documents.
Article 25 In case a document can not be served by those means of service as prescribed in Articles 20 through to 24 of these Provisions, the documents shall be served by public announcement.
In the case of service by public announcement according to law, Customs shall post the original of the administrative legal documents on its bulletin board. Where an administrative penalty decision is served by public announcement, the public announcement thereof shall also be published on newspaper.
Where service is effected by public announcement, sixty (60) days after the date when the public announcement is released, the documents shall be deemed as having been served. In the case of service by public announcement to a party concerned that has no domicile within the territory of the People’s Republic of China, six months after the date when the public announcement is released, the documents shall be deemed as having been served.
Where there are different provisions in any law or administrative regulation, or where there are special methods of service in any international treaty to which our country is either a contracting or an acceding party, such provisions shall prevail.
Article 26 Where facts of the illegal act are solid and supported by legal basis, and an administrative penalty of a fine of 50 yuan or less (in the case of a citizen) or 1,000 yuan or less (in the case of a legal person or any other organization) or a warning may be imposed, Customs may make the decision of administrative penalty on the spot in accordance with the provisions of Section 1 of Chapter V of the Administrative Penalty Law of the People’s Republic of China.
Chapter III Investigation into Cases
Section 1 Filing a case
Article 27 When discovering that a citizen, legal person or other organization has committed an act for which Customs shall impose administrative penalty in accordance with law, Customs shall put the case on file for investigation.
Article 28 Under any of the following circumstances verified by Customs in relation to clues it has received or detected, Customs shall not file a case:
(1) there is no illegal fact;
(2) the illegal act was detected when the time limit for punishment as prescribed by law has passed; or
(3) any other circumstance under which Customs shall not file a case as prescribed by law.
When Customs makes a decision of not filing a case, it shall issue a written notification of not filing the case to notify in time the tip-off maker, the agency that has referred the clues or the suspect who has surrendered himself to justice.
Section 2 Interrogation and Inquiry
Article 29 The officers shall interrogate the persons suspected of illegal act and inquire witnesses separately and one by one, and notify them of their legitimate rights and the legal liabilities which shall be incurred for committing perjury.
The persons suspected of illegal act or the witnesses shall truthfully make statements or provide evidence.
Article 30 The officers may interrogate a person suspected of illegal act at the workplace or domicile of the person, or ask the person to go to the Customs office or a designated place for the interrogation.
The officers may inquire a witness at the workplace or domicile of the witness. When necessary, they may also notify the witness to go to the Customs office or a designated place for the inquiry.
Article 31 When conducting an interrogation or inquiry, Customs shall take a record thereof.
The items on the records of interrogation or inquiry shall be completely filled in according to the relevant provisions, with the time for starting and concluding of the interrogation or inquiry indicated, and the officers shall sign their names on the records of interrogation or inquiry.
The record of interrogation or inquiry shall be shown or read to the person interrogated or inquired on the spot for checking. If the person interrogated or inquired verifies that the record is free from any mistake, the person shall put his /her signature or fingerprint to each page of the record. Where the person interrogated or inquired refuse to do so, the officers shall note the situation in the record. If there is any mistake or omission in the record, the person interrogated or inquired shall be allowed to make corrections or additions and shall affix his/her signature or fingerprint at the places of additions or corrections.
Article 32 When interrogating or inquiring a person who is deaf or mute, there shall be a person present as an interpreter who has a good command of deaf or dumb sign language, and situations regarding the deafness or dumbness of the person interrogated or inquired shall be noted in the record.
When a foreigner or a Stateless person who does not know the Chinese language is being interrogated or inquired, an interpreter shall be provided for him. When the person interrogated or inquired is familiar with the Chinese language and need not an interpreter, he/she shall make a written statement and the officers shall note this situation in the record of interrogation or inquiry.
The name, workplace and occupation of the interpreter shall be noted in the record of interrogation or inquiry. The interpreter shall sign his/her name on the record of interrogation or inquiry.
Article 33 When interrogating a person suspected of illegal act or inquiring a witness for the first time, Customs shall ask his/her name, date of birth, place of resident registration, current abode, type and number of identity card, employer, education, whether he/she has ever been subjected to criminal penalty or administrative penalty imposed by an administrative agency and so on. When necessary, Customs shall also inquire him/her of his/her main family members.
When a person suspected of illegal act or a witness under the age of 18 is interrogated or inquired, his/her parents or other guardians shall be called to be present. Where it is impossible to notify them or they fail to be present after being notified, such a situation shall be noted down in the record.
Article 34 Where the person interrogated or inquired requests for providing a written statement by himself/herself, he shall be permitted to do so. When necessary, the officers may also ask the person interrogated or inquired to write down his/her statement by himself/herself.
Where a person interrogated or inquired provides written statements by himself/herself, he/she shall put his/her signature on his/her written statements and indicate the time, place and subject for writing down the statements. The officers shall, after having received the written statements, note down the date of receipt, and affix their signatures for confirmation.
Article 35 At the time of interrogation or inquiry, audio or video records apart from written records may be made if necessary.
Article 36 The officers shall carefully heed the statements made by the person suspected of illegal act or the witness, and record truthfully.
No officer shall be allowed to obtain statements by violence, menace, lure, fraud or any other illegal means.
Section 3 Search and Examination
Article 37 When searching means of transport or a place, or examining goods or articles, in accordance with law, the officers shall make a record of the search or examination. The record of the search or examination shall be signed or sealed by the officers and the party concerned or the agent of the party. If the party concerned or the agent of the party fails to appear or refuses to sign or seal, the officers shall note the situation in the record of the search or examination, which shall then also be signed or sealed by a witness.
Article 38 When the officers search the body of a person suspected of smuggling in accordance with law, the search shall be conducted at a covered place beyond the sight of persons other than the searchers and by two or more officers of the same gender as the person being searched.
The body search of a suspected smuggler may be conducted under the assistance of a doctor, and a professional examination may be conducted at a medical institution if necessary.
Section 4 Laboratory Testing and Authentication
Article 39 In the course of investigation into a case, where the samples of the concerned goods or articles need to be drawn for laboratory testing and authentication, the samples shall be drawn by Customs or a testing and authentication institution entrusted by Customs. When drawing samples, the party concerned or the agent of the party shall be present. If the party or the agent fails to appear, Customs shall ask for the presence of a witness at the scene.
The samples drawn shall be confirmed and sealed, and the record of drawing samples shall be made, which shall be signed or sealed by the officers or the person(s) of the laboratory testing and authentication institution entrusted by Customs as well as the party or the agent or the witness.
The samples drawn by Customs shall be sent to the testing and authentication institution for laboratory testing and authentication in time.
Article 40 With regard to concerned goods or articles that shall be sold off or shall be released by Customs in the first place after approval is obtained from the Customs, Customs shall draw their samples in duplicate or more. And the number of the copies of samples and the amount of each copy of samples shall be sufficient for identifying the features of the goods or articles.
Article 41 Laboratory testing and authentication shall be undertaken by a Customs laboratory or entrusted to other institutions accredited by the State. The holders or owners of the concerned goods or articles shall provide the relevant materials required for the laboratory testing and authentication.
Article 42 After conducting laboratory testing or authentication, the person making the testing or authentication shall issue a testing report or an authentication conclusion.
A testing report or an authentication conclusion shall indicate the trustor, the items of the laboratory testing or authentication, relevant materials sent to the laboratory testing and authentication institution, the bases of the testing or authentication, the scientific and technical means as adopted and the introduction on the qualification of the testing and authentication institution as well as the persons making the testing or authentication. The persons making the testing or authentication shall sign their names and the laboratories and institution shall put its seal on the report or conclusion. Where an authentication conclusion is made through analysis, the process of the analysis shall be described.
Article 43 Where a party concerned is doubtful of the testing report or the authentication conclusion, the party may apply for a redoing of the testing or authentication but only once. Where after examination Customs finds that there are justifiable reasons for a new testing or authentication, a new testing or authentication shall be conducted.
The testing or authentication expenses shall be borne by Customs. Where a party concerned applies for a new testing or authentication, and the original testing or authentication conclusion has been changed, the testing or authentication expenses shall be borne by Customs. If after a new testing or authentication, the original testing or authentication conclusion has remain unchanged, the testing or authentication expenses shall be borne by the applicant for the new testing or authentication.
Section 5 Inquiry about Deposits and Remittances
Article 44 If the officers inquire about the deposits or remittances of a suspected entity or individual in financial institutions or postal service enterprises when investigating a smuggling case, the inquiry shall be subject to approval by the director general of the regional Customs or the director of its subordinate Customs authorized by the former.
Article 45 The officers shall, when inquiring about the deposits or remittances of a suspected entity or individual in financial institutions or postal service enterprises, show their law enforcement identities and present a written Customs Notice of Assistance for Inquiry.
Section 6 Detention and Guarantee
Article 46 When detaining goods, articles, means of transport, other property or materials such as account books and bills in accordance with law, Customs officers shall show their law enforcement certificates, make a Customs Detention Voucher, serve the voucher on the party concerned, and inform the party on the spot of the reasons and basis for the detention and the rights of the party entitled by law.
A detention voucher shall indicate the names, specifications, quantities and weights, etc. of the goods, articles, means of transport or other property as detained. Where it is impossible to determine the names, specifications, quantities and weights, etc. of the goods, articles, means of transport or other property as detained, their external features shall be described in as much detail as possible. A detention voucher shall bear the signatures or seals of the officers, the parties concerned or their agents, and the keeper. Where any party concerned or the agent thereof is not present at the scene or refuses to affix a signature or seal, the officers shall indicate the situation in the detention voucher, which shall then also be signed or sealed by a witness.
When detaining goods, articles, means of transport, other property or materials such as account books and bills in accordance with law, Customs may affix Customs seals. If a Customs seal has been affixed, the party concerned or the agent thereof and the keeper shall keep it appropriately.
Article 47 The term for Customs to detain goods, articles, means of transport, other property or materials such as account books and bills shall not exceed one year. If it is required for investigation of a case, the said term may be prolonged for one year or less with the approval of the director general of the relevant regional Customs or the director of its subordinate Customs authorized by the former. However, the time period for administrative reconsideration and litigation shall be excluded.
Article 48 Before a People’s Court renders a judgment or Customs makes a decision of administrative penalty, for detained hazardous articles or goods and articles not suitable for storage for a long time such as those which are fresh and live, perishable, or easy to rot, lose effectiveness or deteriorate, or goods, articles or means of transport which the owner applies to sell off in the first place, if it is necessary to sell them off in the first place according to law, it shall be subject to approval by the director general of the relevant regional Customs or the director of its subordinate Customs authorized by the former.
Before the selling-off takes place, Customs shall notify the owner of the goods, articles or means of transport to be sold off. If it is impossible to inform the owner timely before the selling-off, Customs shall inform the owner after the goods, articles or means of transport have been sold off.
Article 49 When lifting the detention of goods, articles, means of transport, other property or materials such as account books and bills, Customs shall make a written Notification of Detention Lifting. The notification shall be signed or sealed by the officers, the party concerned or the agent thereof and the keeper. Where the party concerned or the agent thereof fails to appear or refuses to sign or seal, the officers shall note the situation in the notification, which shall then also be signed or sealed by a witness.
Article 50 Where it is impossible or not suitable to detain the suspected goods, articles or means of transport, and the party concerned or the person in charge of the means of transport provides Customs with a guarantee, the officers shall make a receipt of guarantee and serve it on the party concerned or the person in charge of the means of transport. The officers, the party concerned or the person in charge of the means of transport, or the agent thereof shall put their signatures or seals on the receipt of guarantee.
After the guarantee is received, the officers may take photos or videos of the concerned goods, articles and means of transport to keep in the archives.
Article 51 Where Customs discharges the guarantee in accordance with law, the officers shall make a written Notification of Guarantee Relief and serve it on the party concerned or the person in charge of the means of transport. The officers, the party concerned or the person in charge of the means of transport, or the agent thereof shall put their signatures or seals on the Notification of Guarantee Relief. If the party concerned, the person in charge of the means of transport or the agent thereof is not present at the scene or refuses to sign or seal, the officers shall note down the situation on the Notification of Guarantee Relief, which shall then also be signed or sealed by a witness.
Article 52 Detention of smuggling criminal suspects shall be governed by the Provisions of the General Administration of Customs of the People’s Republic of China on Execution of Personal Detention.
Section 7 Discontinuation and Conclusion of Investigation
Article 53 Customs officers shall refer the case in time if they find the administrative penalty case should be referred to another administrative body or criminal investigation agency.
Investigation into the administrative penalty case by Customs shall be discontinued as of the date of referral to another administrative body or criminal investigation agency.
Article 54 For administrative penalty cases whose investigation by Customs has been discontinued, Customs shall resume the investigation under any of the following circumstances:
(1) The administrative body or criminal investigation agency to whom the case has been referred has made the disposition, but Customs administrative penalty is still required; or
(2) The administrative body or criminal investigation agency to which the case has been referred refuses to accept the case or has decided not to impose criminal penalty and as such has returned the case to Customs for disposition.
Article 55 Investigation into the administrative penalty case may be concluded under any of the following circumstances:
(1) the illegal facts are clear, the legal procedure is complete, and there is sufficient evidence to determine the nature and penalty of the case;
(2) there is no illegal fact;
(3) the natural person who is the party concerned has died;
(4) the legal person or other organization which is the party concerned has been terminated, and there is no legal person or other organization to take its rights and obligations and no other related person can be traced;
(5) the administrative body or criminal investigation agency to whom the case has been referred by Customs has made the disposition, and there is no need for Customs to impose administrative penalty; or
(6) any other circumstance under which the investigation shall be concluded as prescribed by law.
Chapter IV Decision of Customs Administrative Penalty
Section 1 Cases Review
Article 56 Customs shall review administrative penalty cases whose investigation has been concluded. If the review procedure is not gone through, Customs shall not make the decision to withdraw the case, to impose or not to impose administrative penalty.
Article 57 In the course of reviewing an administrative penalty case, Customs shall review whether the illegal fact is clear, whether the substantial evidence is objective and sufficient, whether the procedure of investigation and evidence collection is legal and appropriate, and whether there are circumstances for no administrative penalty, mitigation of penalty, lesser punishment or heavier punishment, and as such put forward its opinion about the application of law and the disposition of the case.
The case shall be returned for supplementary investigation if the illegal fact is not clear, the evidence is not sufficient or the investigation procedure is illegal.
Article 58 Administrative penalty shall not be imposed on any person under the age of 14 who has committed an illegal act, but his/her guardian shall be ordered to subject him/her to discipline. A lesser or mitigated administrative penalty shall be given to persons who have reached the age of 14 but not the age of 18.
Article 59 A mentally disordered person who has committed an illegal act at the time when he/she is unable to identify or control his/her behavior shall be given no administrative penalty, but his/her guardian(s) shall be ordered to keep a strict guard on him/her and subject him/her to medical treatment. An intermittently insane person who has committed an illegal act while in normal mental condition shall be given due administrative penalty.
Section 2 Notification, Reconsideration and Hearing
Article 60 Before Customs makes an administrative penalty decision, it shall first notify the party concerned of the facts, reasons and basis of the administrative penalty as well as the legal rights of the party concerned as prescribed by law.
Customs shall notify the party concerned of the right of the party to ask for a hearing before it makes any of the following administrative penalty decisions:
(1) suspend the relevant business engaged in by the party concerned;
(2) suspend the practicing of Customs declaration by the party concerned;
(3) deregister the Customs registration record of the party concerned;
(4) disqualify the Customs declaration qualification of the party concerned;
(5) impose a fine of RMB 10,000 yuan or more on the party concerned if it is a citizen;
(6) impose a fine of RMB 100,000 yuan or more on the party concerned if it is a legal person or other organizations; or
(7) confiscate concerned goods, articles, or means of transport used for smuggling.
When fulfilling its notification obligation, Customs shall issue a written Administration Penalty Notification and serve it on the party concerned.
Article 61 Except for any force majeure or other justifiable reasons accepted by Customs, the party concerned shall, within 3 working days as of the date of receipt of the Administration Penalty Notification, lodge his/her/its statement, defense argument and hearing application in writing. Exceeding the time limit will be regarded as giving up the above rights.
If the party concerned puts forward his/her/its statement and defense argument orally, Customs shall make a record in written form, which shall be signed or sealed by the party concerned on the spot.
Where the party concerned has given up the above rights to statement, argument and hearing, there shall be a written record, which shall be signed and sealed by the party concerned or the agent thereof for confirmation, and Customs may make a direct administrative penalty decision.
Article 62 Customs shall reconsider the case upon receipt of the written statement and defense argument of the party concerned. If the facts, reasons or evidence put forward by the party concerned are tenable, Customs shall accept them.
Article 63 Except for new illegal facts as detected by Customs, Customs shall not make the penalty heavier because of the defense argument of the party concerned.
Article 64 After the reconsideration, if the facts, reasons, basis and range of the original administrative penalty contained in the notification are changed, Customs shall make a new written Administration Penalty Notification, in accordance with Articles 60 through to 63 of these Provisions.
Article 65 Where the party concerned applies for a hearing, it shall be handled in accordance with the Measures of the General Administration of Customs of the People’s Republic of China for Hearings on Customs Administrative Penalty.
Section 3 Decision
Article 66 According to the different results of review of administrative penalty cases, the relevant head of Customs shall:
(1) make an administrative penalty decision in light of the gravity of the circumstances and consequences, where an illegal act has been committed and requires administrative penalty;
(2) make a decision of no administrative penalty where there shall be no administrative penalty, as prescribed by law;
(3) withdraw the case if any of the circumstances prescribed in items (2) through to (4) of Article 55 of these Provisions occurs;
(4) make a seizure if conditions are met for any of the circumstances for seizure prescribed in items (2), (3) and (4) of Article 62 of the Regulations on Implementing Customs Administrative Penalty; or
(5) refer the case to the relevant criminal investigation agency for disposition according to law, if the illegal act is suspected of constituting a crime.
In making an administrative penalty decision, Customs shall ensure that findings of fact of the illegal act are clear, the substantial evidence is solid and sufficient, the nature of the illegal act is determined accurately, the application of law is appropriate, the handling procedure is legal and the range of penalty is reasonable.
Article 67 Decision to impose a heavier administrative penalty for an illegal act which is of a complicated or grave nature shall be subject to collective discussions and decision of the case inquisition council of Customs before the penalty decision is made.
Article 68 Customs shall issue a written Administrative Penalty Decision or Decision of No Administrative Penalty if it has decided to give or not to give an administrative penalty.
Article 69 The written Administrative Penalty Decision shall include the following contents:
(1) basic information on the party concerned, including the party’s name, Customs registration code, Customs broker registration code, address and so on;
(2) findings of illegal fact and evidence of violation of laws, regulations and Customs rules;
(3) the type and basis of the administrative penalty;
(4) the implementation method and time limit of the administrative penalty;
(5) the method and time limit to apply for an administrative reconsideration or bring an administrative lawsuit, where the party concerned dissents from the administrative penalty decision; and
(6) the name of the Customs making the Administrative Penalty Decision and the date of decision to which the seal of the Customs shall be affixed.
Article 70 The written Decision of No Administrative Penalty shall include the following contents:
(1) basic information on the party concerned, including the party’s name, Customs registration code, Customs broker registration code, address and so on;
92) findings of illegal fact and evidence of violation of laws, regulations and Customs rules;
(3) the basis for not giving the administrative penalty;
(4) the method and time limit to apply for an administrative reconsideration or bring an administrative lawsuit where a party concerned dissents from the Decision of No Administrative Penalty; and
(5) the name of the Customs making the Decision of No Administrative Penalty and the date decision to which the seal of the Customs shall be affixed.
Article 71 The written Administrative Penalty Decision shall be read and directly given to the party concerned on the spot. If the party concerned is not present, Customs shall serve the written Administrative Penalty Decision on the party concerned within 7 days.
Article 72 Customs shall make a seizure list and serve it on the person from whom the seizure has been made, when it seizes concerned goods, articles, illegal gains, means of transport or specially made equipment pursuant to provisions of Article 62 of the Regulations on Implementing Customs Administrative Penalty.
Where findings of smuggling or other illegal facts are basically clear but the party concerned cannot be traced, Customs shall issue a public announcement of seizure before issuing a seizure list. The public announcement shall be valid for three (3) months. Customs shall order the party concerned to go to the designated Customs and go through the relevant Customs procedures within the validity period of the public announcement. Where the party concerned fails to go through the relevant Customs procedures at the designated Customs before the expiration of the public announcement, Customs may make the seizure in accordance with circumstances prescribed in item (4) of the first paragraph of Article 62 of the Regulations on Implementing Customs Administrative Penalty.
Article 73 The seizure list shall bear clearly the names, specifications, quantities or weights, and so on, of the seized goods, articles, illegal gains, means of transport or specially made equipment. If the goods, articles, illegal gains, means of transport or specially made equipment carry any obvious and important characteristics or blemish, the officers shall note them down clearly in the seizure list.
Article 74 The seizure list shall be signed or sealed by the officers and the person from whom the seizure has been made or the agent thereof.
Where the person from whom the seizure has been made or the agent thereof refuses to sign or seal, or the person from whom the seizure has been made cannot be traced but there is a witness present on the scene, the seizure list shall then be signed or sealed by the witness instead.
The officers shall note in the seizure list the reason(s) for the absence of the signature or seal of the person from whom the seizure has been made.
The seizure list issued according to item (4) of the first paragraph of Article 62 of the Regulations on Implementing Customs Administrative Penalty shall be served by public announcement.
Chapter V Execution of Administrative Penalty Decision
Article 75 Once Customs makes an administrative penalty decision, the party concerned shall execute the decision within the time limit set in the written Administrative Penalty Decision.
Execution procedures for decisions of administrative penalties such as suspension of engagement in the relevant business, suspension of practicing in Customs declaration business, deregistering of the Customs registration record and disqualifying of the Customs declaration qualification shall be formulated by the General Administration of Customs separately.
Article 76 The party concerned that is in economic difficulties may apply in writing for postponing the payment of the fine imposed or paying the fine by installments.
Upon receipt of such an application for postponement or installments, Customs shall make an approval or disapproval decision within 10 working days, issue a written notification and serve it on the applicant. Where Customs has approved the application for postponement or installments, it shall notify in time the organization collecting the fine.
Article 77 Where Customs has approved the application of the party concerned for postponing the payment of the fine imposed or paying the fine by installments, the time limit for completing the execution of the decision shall not exceed 180 days as from the expiration date set in the written Administrative Penalty Decision.
Article 78 Where the party concerned fails to execute the administrative penalty decision, Customs may take the following measures:
(1) where the party concerned fails to pay the fine imposed within the prescribed time limit, 3 percent (3%) of the fine may be added to the fine on a daily basis; or
(2) where the party concerned neither complies with the Customs administrative penalty decision within the time limit, nor applies for reconsideration, nor brings a lawsuit to the People’s Court, Customs may either offset the proceeds of the seized goods, articles and means of transport against the fine, or offset the guarantee provided by the party concerned against the fine, or apply to the People’s Court for enforcement of the penalty.
Article 79 Where Customs has decided to add the fine or take a measure to offset the fine pursuant to Article 78 of these Provisions, it shall issue a written Enforcement Notification and serve it on the party concerned.
Article 80 Where the party concerned on whom Customs has imposed a penalty or its legal representative or principal person in charge fails to pay off the fine, illegal gains or money of equivalent value to the seized goods, articles and means of transport used for smuggling to be recovered according to law, and fails to present Customs with an equivalent guarantee, Customs may make a letter of request for interception assistance and ask the immigration agency to stop them from leaving the country.
The letter of request for interception assistance shall be accompanied by the related administrative legal documents such as the Administrative Penalty Decision, and list the name, gender, date of birth, type and number of the travelling document of the person to be stopped from leaving the country. Where the person to be stopped from leaving the country is a foreigner or a Stateless person, the letter shall also note the English name of the person.
Article 81 Where the party concerned or its legal representative or principal person in charge has paid off the fine, illegal gains and money of equivalent value to the seized goods, articles and means of transport used for smuggling to be recovered according to law, or has presented Customs with an equivalent guarantee, Customs shall make a letter of request for lifting interception and notify the immigration agency in time.
Article 82 Where there is an excess after Customs offsets the guarantee provided by the party concerned or the proceeds of the seized goods, articles and means of transport against the fine, Customs shall return it to the party concerned or lift the detention or discharge the guarantee in time.
Article 83 Within three (3) months as of the date of service of the written Notification of Detention Lifting by Customs, if the party concerned fails to come to Customs and go through the procedure for the return of the concerned goods, articles, means of transport or other property without justifiable reasons, Customs may sell off the concerned goods, articles, means of transport or other property and reserve the money obtained thereafter. If there is an excess after the deduction of the warehousing fee and other related expenses calculated as of the date of service of the written Notification of Detention Lifting by Customs, the party concerned shall come to Customs and go through the related procedure within one (1) year as of the date of service of the Notification of Detention Lifting by Customs. If it exceeds the time limit, Customs will turn over the excess to State Treasury.
Article 84 Within one (1) year as of the date of service of the written Notification of Detention Lifting by Customs, if the party concerned fails to come to Customs and go through the procedure for the return of the property and title certificate(s) without justifiable reasons, Customs shall sell off the concerned property, cash the title certificate(s) and turn over the money to State Treasury.
Article 85 Where Customs applies to a People’s Court for enforcement of a decision, it shall fill in an enforcement application and supply the People’s Court with other required materials.
Article 86 The application to a People’s Court for enforcement of a decision shall comply with the Interpretations of the Supreme People's Court on Several Problems in Implementing the Administrative Procedure Law of the People’s Republic of China, and shall be filed pursuant to the following time limits:
(1) within 180 days after 3 months has elapsed since the date of service of the written Administrative Penalty Decision, if the party concerned neither applies for reconsideration nor brings an administrative lawsuit to a People’s Court after the service of the written Administrative Penalty Decision;
(2) within 180 days after 15 days has elapsed since the date of service of the written Decision of Reconsideration, if the party concerned does not bring an administrative lawsuit to a People’s Court after the service of the written Decision of Reconsideration;
(3) within 180 days after 15 days has elapsed since the date of service of the written Administrative Judgment of First Instance, if the party concerned does not file an appeal after the administrative judgment of first instance;
(4) within 180 days after 10 days has elapsed since the date of service of the written Administrative Ruling of First Instance, if the party concerned does not file an appeal after the administrative ruling of first instance; or
(5) within 180 days as from the date of service of the written Administrative Judgment of Second Instance.
Article 87 Where Customs imposes a fine on the party concerned, confiscates its/his/her illegal gains or recovers money of equivalent value to the smuggled goods, articles, means of transport used for smuggling and so on of the party concerned after the party has committed an act in violation of the Customs Law of the People’s Republic of China, which has resulted in the division, merger or other reorganization of assets of an enterprise, Customs shall regard the legal person and organization which can take the rights and obligations of the party concerned as the party on which the penalty decision shall be executed.
Article 88 The execution of the penalty decision shall be discontinued under any of the following circumstances:
(1) the penalty decision might be illegal or inappropriate;
(2) the People’s Court decides to discontinue the penalty after Customs applies to the People’s Court for enforcement of the penalty;
(3) the administrative reconsideration body or the People’s Court holds that the penalty needs to be discontinued; or
(4) any other circumstance under which the penalty shall be discontinued.
Discontinuation of the penalty pursuant to item (1) of the foregoing article shall be subject to approval of the director general of the relevant regional Customs or the director of the local Customs authorized by the former, before the penalty is discontinued.
Where the circumstance for the discontinuation of execution no longer exists, the penalty shall be recovered.
Article 89 The execution of penalty shall be concluded under any of the following circumstances:
(1) the legal documents on which the penalty is based have been cancelled;
(2) the natural person on whom the penalty has been imposed has died;
(3) the legal person or other organization on which the penalty has been imposed has been legally terminated without any person to take its rights and obligations, and there isn’t any other property in lieu for the execution of the penalty;
(4) two (2) years has elapsed since the expiration date of the time limit for the implementation of the Customs administrative penalty decision, and Customs still cannot complete the execution of the penalty after it has taken all kinds of measures. However, the circumstances where Customs has applied to a People’s Court for enforcement of the penalty shall not be included;
(5) where an application is filed to a People’s Court for enforcement of the penalty, the execution of the penalty fails to be completed more than two (2) years after the People’s Court decided to discontinue the execution;
(6) the People’s Court decides to conclude the execution of the penalty after Customs applies to the People’s Court for enforcement; or
(7) any other circumstance under which the execution of the penalty shall be concluded as prescribed by law.
Chapter VI Summary Procedure
Article 90 Customs may apply a summary procedure to cases which have clear findings of illegal fact and light illegal circumstances and are detected at sites of Customs operations in relation to baggage, postal articles, express consignments and cargo control, bond operations and other Customs control operations. However, circumstances where the procedure prescribed in Article 26 of these Provisions is applicable shall not be included.
Article 91 For a case where the summary procedure is applicable, after on-site investigation, Customs may directly issue an Administrative Penalty Notification and ask the party concerned or the agent thereof to sign it on the spot.
Article 92 Customs may make an administrative penalty decision on the spot under either of the following circumstances:
1) the party concerned has given up on the spot the rights to make a statement, a defense argument and apply for a hearing; or
2) the party concerned or the agent thereof accepts the Customs opinion after Customs makes an on-site reconsideration based on the statement and argument of the party concerned on the spot.
Situations where the party concerned has given up the rights to statement, argument and hearing on the spot, or where the party concerned has made his/her/its statement and argument on site, or where the party concerned accepts or does not accept the Customs opinion after reconsideration shall recorded in written form, which shall be signed or sealed by the party concerned for confirmation.
Where an administrative penalty decision is made on the spot, a written Administrative Penalty Decision shall be issued and served on the party concerned on the spot.
Article 93 In the course of applying a summary procedure, Customs shall not make any administrative penalty decision on the spot under any of the following circumstances:
(1) it is impossible for Customs to make a reconsideration on the spot in relation to the statement and argument made by the party concerned;
(2) the party concerned still dissents from Customs after Customs has made the reconsideration on the spot;
(3) the party applies to Customs on the spot for a hearing according to law; or
(4) Customs holds that further investigation and evidence collection is required.
Chapter VII Supplementary Provisions
Article 94 Where the officers neglect their duties, commit a self-seeking misconduct, abuse their power, or ask for or accept others’ belongings, they shall be punished in accordance with law. Where a crime is constituted, criminal penalties shall be imposed according to law.
Article 95 These Provisions shall also apply to imposition of administrative penalty by Customs on foreign nationals, Stateless persons, foreign enterprises or other organizations.
Article 96 The power to interpret these Provisions shall remain with the General Administration of Customs of the People’s Republic of China.
Article 97 These Provisions shall be effective as of July 1, 2007.
(All information in this document is authentic in Chinese. English is provided for reference only. In case of any discrepancy, the Chinese version shall prevail.)
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