Customs law expert interprets ipad event: Customs discretion too large

August 19 This year, the General administration of Customs issued the "General Administration of Customs proclamation of 2010 54th" (hereinafter referred to as "order 54th"), the recent "entry of the ipad was levied thousand yuan tax" and the media and the public attention. "54th order" after the introduction, whether the students joked about the "naked running Home", or outbound tourists to the shopping list of "reluctantly", all show that it's impact on specific groups can not be overlooked. So, how should this "54th order" be understood, what problems have been exposed in the implementation of the order, and should it be perfected? To address this issue, China Youth Daily interviewed two experts in the field of customs law in China.　　They are 赵国华, deputy director of the Customs Law Research center of the Cesl, and Sean lawyer at the Beijing Ming Kei law firm. Allegedly contrary to the WTO agreement, Sean said "54th order", which is the main content of "5000 yuan to pay tax and 20 kinds of goods to be paid in full" for the entry of the passengers, is suspected to be in the World Trade Organization (WTO)　　The Information Technology Product Agreement (ITA) is inconsistent. He pointed out that, from the level of legal effect, "order 54th" is issued by the General Administration of customs in the form of "normative documents", the level of its legal effect can be made by the central government departments or local governments with the right to formulate normative documents.　　The ITA of WTO is an international treaty in nature, and our country should be bound by it after the formal signing, ITA has the same effect as "law" in our country. "According to ITA, participating countries should reduce import tariffs on information technology products, including all types of computers, to zero tariffs in stages." "But the General Customs administration used ' 54th order ' to levy high taxes on the ipad, apparently contrary to Ita's ' upper Law '," Sean said.　　He therefore considered that order 54th should be amended.　　However, some WTO law experts interviewed by the China Youth Daily questioned whether the "54th order" violates China's commitments under the WTO, and remains to be examined further. Han Liyu, a professor at Renmin University Law School and executive director of the WTO Research Institute of the Chinese Law Society, told the author that to confirm the "contradiction" of the two, it was also necessary to examine carefully what China had specifically pledged in signing Ita. "Even if you look at a promise, you will have different views because of the differences in understanding." Professor Han Liyu said, "China's litigation in the WTO cases, there are many similar problems, not only the ' 54th order ' proprietary." "Although it is still to be confirmed that the 54th order is inconsistent with the ITA rules, it is a fact that the Ministry of Commerce sent a letter to the Customs department in early November to question the matter," he said. As of Press, the Ministry of Commerce seems to have reached an understanding with the general Administration of Customs, Ministry of Commerce spokesman Yao Jian said "support the customs administration of law." The head of the General Customs Supervision Division also said that when entering the country, the use of the ipad for personal use does not violate WTO rules. He said that the WTO rules are mainly aimed at the national and regionalTrade, involving goods. An ipad for personal use is an item, not a cargo.　　There is a difference between goods and goods, and "order 54th" is for personal belongings.　　The definition of "personal belongings" without the standard "Order No. 54th" stipulates, when residents enter the country, they carry a "personal belongings" of more than 5000 yuan in excess of their income, and only tax the excess, but they must levy a full tax on indivisible items such as expensive watches and designer handbags. The above provisions are intended to increase the "water passenger" to combat, standardize the "purchasing" behavior. However, 赵国华 said that because "54th order" on how to define "personal belongings" there is no meticulous and operational strong standards of judgment, so the current mainly rely on customs officers at the site discretion. "' personal belongings ' not only in ' 54th order ', even in the People's Republic of China Import and export customs regulations are not clearly defined, which for customs officers left too much discretion." Sean said: "The law enforcement has too much room for subjective judgment, it will inevitably have the possibility of abuse of power, breeding corruption." In his view, such vague norms at the operational level, may make the "personal belongings" and "goods" lines become blurred.　　In this case, the "Maur" approach is inevitable. According to the Sean, it is suggested that a more detailed and feasible "personal belongings" criterion should be established. He also suggested that residents should take the initiative to strengthen their self-protection before introducing specific criteria.　　For example, the "individual with the exit and entry" items, in the departure to the customs to declare the registration, to prove its source, in order to effectively avoid the "tax", for "overseas access" items, to avoid "excess" as far as possible. "In addition, before shopping abroad, it may be useful to calculate the price of the commodity plus the import tax rate, and in the domestic purchase which is more cost-effective."　　"Sean also suggested that if the customs officers in the tax has violated their legitimate rights and interests, immigration residents should also pay attention to collect and retain the relevant vouchers, after the administrative reconsideration, litigation and other means to seek solutions." In addition to "excessive discretion", 赵国华 pointed out that the "54th order" in the full levy on the "one-size-fits-all" provisions, but also unfair. Sean further said that the "one-size-Fits-all" is also reflected in the current customs Law on the valuation of dutiable goods. According to the current "duty-paid Price list", the general duty-paid price of notebook computer is 5000 yuan, but in real life, the price of notebook computer from low-end one thousand or two thousand yuan to high-grade tens of thousands of yuan. Sean said, "In this case, the Customs law is still in the valuation of ' one-size-Fits-all ', appears too simple and rough."　　Han Liyu The international experience, this kind of "one-size-Fits-all" is to a large extent the result of "the provision of norms lag behind the development of the Times." He explained, in the case of "classification" of the tax commodities, that although the International Customs Organization and the Customs of China have clear provisions on the classification of commodities, but for the rapid development of some timesAnd the birth of new products, such as I non-segmental pad and other electronic products, but not timely reflected in the original classification directory.　　Thus, differences in classification and valuation are unavoidable.　　In this respect, 赵国华 summed up more concise, he will "54th order" in the community caused by the huge repercussions, simply called "Old rules met with new problems." Should the "Order No. 54th" be amended to amend the "Orders 54th"?　　In this respect, the experts interviewed expressed different views. The deputy director of 赵国华 that "order 54th" is not a new provision in itself, but a summary and emphasis on previous customs laws and regulations. In the system of our country's customs law, "Order No. 54th" has no conflict with other regulations and its upper law, so there is no need to make a big amendment. "It is only because the enforcement of the order has increased considerably since the release of the decree, and it is easy for the ipad and other fine-priced electronic products to exceed the limit, and many travellers love and care about these products, so the response to ' 54th ' is so strong."　　"he said. Sean a different point of view. In his view, "International law is superior to domestic law and subordinate law to superior law" is the basic principle of law application in our country. China's accession to the WTO in the process of negotiations, has been a large-scale revision of domestic law to meet the relevant requirements of the WTO, and the general administration of the "54th order" in the form of the ipad and other electronic products levy high taxes, contrary to China's accession to the WTO commitments, and always respect international treaties.　　Therefore, Sean that "order 54th" should be amended in a timely manner in order to avoid violating ITA rules and avoid trade disputes under the WTO framework. In addition, Sean also suggested that the immigration residents who had suffered damage from their own rights and interests could also push for amendments to the order by their own power. "They can apply for administrative reconsideration organ to examine the legality of ' 54th order ' in accordance with the provisions of section seventh of the administrative reconsideration law." He said, "This will enable the ' 54th order ' to be withdrawn or amended as soon as possible." "It is in line with the international practice for the Customs and Excise Department officials recently to refer to the practice of providing duty-free limits for baggage items carried by imported travellers," Sean. He pointed out that customs officials should not forget China's basic national conditions and the interests of the people. "Our country is still a developing country, buy High-tech products from abroad, for the common people, sometimes not only is an economical choice, even is the last resort choice." He warned that if the "54th order" is divorced from the reality of China, it may be shelved, and "This has been seen in our country's previous legislation." Intern Wang Mengyu