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Administrative and municipal law
Reference:

Comparative legal analysis of administrative responsibility in the field of customs in the Eurasian Economic Union

Kleimenova Anastasiia Nikolaevna

PhD in Law

Associate Professor of the Department of Customs Law, Russian Customs Academy

140015, Russia, Moscow region, Lyubertsy, Komsomolsky Prospekt, 4

a.shashkina@customs-academy.ru
Other publications by this author
 

 

DOI:

10.7256/2454-0595.2023.4.43605

EDN:

VTUSGY

Received:

19-07-2023


Published:

05-09-2023


Abstract: The subject of the study is the legislation of the EAEU member states on administrative offenses in the field of customs. A comparative analysis of the norms on administrative responsibility for non-declaration of goods operating in the Russian Federation, the Republic of Belarus, the Republic of Kazakhstan and the Kyrgyz Republic is carried out. The comparison of the list of administrative offenses in the field of customs affairs provided for by the national legislation of the Russian Federation and the Kyrgyz Republic was carried out. The relevance of the research topic is due to the fact that unified customs regulation is carried out on the territory of the EAEU, but administrative responsibility for violation of customs regulations is regulated by the national legislations of the EAEU members. At the same time, the sanctions and the list of compositions in each state differ significantly. The disproportionality of administrative penalties provided for by the administrative legislations of the EAEU member states has been established, and the need for unification of the composition of administrative offenses in the field of customs affairs, i.e. the establishment of a general list of articles providing for administrative liability for violation of customs rules, has also been identified. The importance of legal regulation of administrative responsibility in the field of customs in the EAEU states is underestimated, despite the fact that the institute of administrative responsibility is an effective tool for ensuring compliance with the customs legislation of the EAEU and national legislation on customs regulation. The directions of unification of legislation on administrative responsibility in the field of customs affairs in the EAEU states are formulated.


Keywords:

administrative responsibility, Eurasian Economic Union, unification of legislation, administrative penalties, subjects of administrative responsibility, non-declaration of goods, fine, statute of limitations, administrative offences, customs business

This article is automatically translated.

 

The study of this topic was conducted by the author in 2016 [1, pp.76-82], now, after seven years, the purpose of this article is to analyze the current state of legal regulation of administrative penalties in the member states of the Eurasian Economic Union (EAEU), applied for administrative offenses in the field of customs. A single customs legislation is in force on the territory of the Eurasian Economic Union, at the same time, in each EAEU state there is national legislation establishing administrative responsibility for customs offenses and a subject of foreign economic activity who violated customs rules in the Russian Federation and a subject of foreign economic activity who committed a similar offense in another country of the Union will be brought to administrative responsibility according to various norms (different administrative sanctions will be applied to them) [1, p.77].   We share the point of view of Rylskaya M.A. and Gumenyuk V.P. that the implementation of proceedings on administrative offenses in accordance with the current national legislations of the EAEU member states clearly contradicts the goals of the creation of the EAEU [2, p.185]. In this regard, persons violating customs legislation have a benefit, explained by the difference in the amount of responsibility for the same act in different EAEU countries [3, p.184]. Unified customs legislation should imply uniform punishment for the commission of similar violations of the customs legislation of the EAEU.  As Kalmykova A.V. rightly notes: "for the construction of an integrated single economic space, coordination of the national legislations of the EAEU member states is of particular importance, otherwise the single market formed within the Union may be saturated with unsafe products, and entities violating the requirements of legislation on technical regulation, due to a different approach in sentencing and different sanctions for offenses in the area under consideration can avoid punishment" [4, p.78]. The process of unification and harmonization within the EAEU is of particular importance, since for the Russian Federation the transition to an in-depth model of regional cooperation within the framework of friendly international organizations and interstate integration associations has become an effective response to sanctions pressure from a number of states [5, p.18].

In addition, in accordance with Article 3 of the Treaty on the Specifics of Criminal and Administrative Liability for Violations of the Customs Legislation of the Customs Union and the member States of the Customs Union: "each Party undertakes to take measures to amend its legislation providing for criminal and administrative liability for violations of the customs legislation of the Customs Union and the legislation of the Parties, and to bring to a uniform determination of the illegality of such acts" (Agreement on the Specifics of Criminal and Administrative Liability for Violations of the Customs Legislation of the Customs Union and the member States of the Customs Union (signed in Astana on 05.07.2010)). We will analyze the legislation on administrative responsibility in the EAEU states in order to identify the uniformity and proportionality of administrative penalties for violations of customs rules in the EAEU. The legal basis of the comparative analysis was the Customs Code of the EAEU, as well as the Code of the Russian Federation on Administrative Offenses (Administrative Code of the Russian Federation), the Code of the Republic of Belarus on Administrative Offenses (Administrative Code of the Republic of Belarus), the Code of the Republic of Kazakhstan on Administrative Offenses (Administrative Code of the Republic of Kazakhstan), the Code of the Kyrgyz Republic on Offenses (Code of the Kyrgyz Republic).  Thus, all the EAEU members, with the exception of Armenia, will be analyzed due to the absence of the relevant legislation of the named state in official open sources.

The key stage of the movement of goods across the customs border of the EAEU is the declaration of goods. According to the EAEU Customs Code, goods are subject to customs declaration: 1) when they are placed under the customs procedure (paragraph 1 of Article 104 of the EAEU Customs Code); 2) goods for personal use (paragraph 4 of Article 258 of the EAEU Customs Code); 3) international transportation vehicles in cases provided for in paragraph 4 of Article 272 of the EAEU Customs Code; 4) supplies in accordance with paragraph 2 of Article 281 The EAEU TC. The duty to carry out the customs declaration of goods is assigned to the declarant (sub-item 1, item 2, Article 84 of the EAEU Customs Code). Let's analyze the administrative penalties for non-declaration of goods in the prescribed form in the EAEU member states (Table 1).

Table 1. Administrative responsibility for non-declaration of goods in the EAEU Member States

EAEU Member State Article Sanction
Russian Federation Part 1 of Article 16.2 of the Administrative Code of the Russian Federation "Non-declaration or false declaration of goods" an administrative fine for citizens and legal entities in the amount of one second to two times the value of the goods that were the objects of an administrative offense, with or without their confiscation or confiscation of the objects of an administrative offense; for officials - from ten thousand to twenty thousand rubles
Republic of Belarus Part 1 of Article 15.5 of the Administrative Code of the Republic of Belarus "Non-declaration or submission of false information about goods" a fine in the amount of 5254 rubles to 31524 rubles, and for an individual entrepreneur or a legal entity – up to thirty percent of the cost of the AP item. Non-declaration on a large scale (the cost of the AP item is 105080 rubles or more) entails the imposition of a fine in the amount of ten to thirty percent of the cost of the AP item (The author converted at the exchange rate effective on July 1, 2023. In the Administrative Code of the Republic of Belarus, the fine is set in the amount of basic values (1 basic value is 37 Belarusian rubles)).
Republic of Kazakhstan Part 1 Article 551 of the Administrative Code of the Republic of Kazakhstan "Non-declaration or false customs declaration of goods, cash, monetary instruments, false statement of information in customs documents" a fine for individuals in the amount of 19676.38 rubles, for small businesses or non-profit organizations - in the amount of 32793.97 rubles, for medium-sized businesses - in the amount of 52470.36 rubles, for large businesses - in the amount of 98381.93 rubles (The author converted at the exchange rate effective on July 1, 2023. In the Administrative Code of the Republic of Kazakhstan, the fine is set at the amount of monthly calculation indices (1 monthly calculation index is equal to 3450 tenge)).
Kyrgyz Republic sub-item 4 of item 1 of Article 372 "Illegal movement of goods or vehicles" a fine for individuals in the amount of 20,200 rubles, for legal entities – 50,500 rubles (The author converted at the exchange rate effective on July 1, 2023. In the Code of the Republic of Kazakhstan, the fine is set in the amount of calculated indicators (1 monthly calculated indicator is 100 som)). 

 

Comparative legal analysis of administrative responsibility for non-declaration of goods in the EAEU states allowed us to formulate the following conclusions:

1) the most "severe" sanctions are established by the administrative legislation of the Russian Federation, since, in addition to a fine, a court for non-declaration of goods may order the confiscation of an instrument or an object of an administrative offense. The Code of the Republic of Kazakhstan provides that the seized goods are subject to return to the offender in case of voluntary payment of the customs duties due in double amount, including penalties, but only when moving goods and vehicles in addition to customs control (note to Article 372-1 of the Code of the Republic of Kazakhstan), such a sanction is not provided for non-declaration;

2) the measures of administrative responsibility established in Kazakhstan and Kyrgyzstan for non-declaration appear to be "ultra-liberal". We consider the difference in fines to be fundamental: for example, in the amount of one second to two times the value of undeclared goods (Russia, for individuals) and 20200 rubles (Kyrgyzstan, for individuals);

3) different subject composition. In all EAEU countries, except Kazakhstan, sanctions are differentiated for individuals and legal entities. The Administrative Code of the Republic of Kazakhstan establishes liability for individuals, small, medium, large businesses, as well as non-profit organizations.

In addition to the disproportionality of administrative penalties provided for by the administrative legislations of the EAEU member states, the need to unify the composition of administrative offenses in the field of customs affairs, i.e. the establishment of a general list of articles providing for administrative liability for violation of customs rules, was also revealed (Table 2).

Table 2. Sample analysis of articles of the Administrative Code of the Russian Federation and the Code of the Kyrgyz Republic establishing administrative responsibility for violation of customs legislation

¹

Illegal act

Russian Federation

Kyrgyz Republic

1.       

Mooring to a water vessel or other floating means under customs control

Article 16.8 of the Administrative Code of the Russian Federation

2.       

Violation of the order of destruction of goods

Article 369 of the Code of the Republic of Kazakhstan

3.       

Non-stop of a vehicle crossing the customs border

Article 361 of the Code of the Republic of Kazakhstan

     4.

Failure to submit reports to the customs authority

Article 16.15 of the Administrative Code of the Russian Federation

     5.

Failure to notify about crossing the customs border

Article 357 of the Code of the Republic of Kazakhstan

 

Also of interest is Note 2 to Chapter 15 of the Administrative Code of the Republic of Belarus, according to which, if there are reasons and grounds for initiating administrative proceedings against a legal entity for committing an administrative customs offense or initiating administrative proceedings against such a person, conducting administrative proceedings against an individual is excluded. In the Russian Federation, bringing a legal entity to administrative responsibility does not exempt an individual from responsibility for this act (Part 3 of art.2.1 Administrative Code of the Russian Federation). In practice, the courts and customs authorities of the Russian Federation in most cases involve only guilty legal entities.

The main conclusion of the analysis is the revealed underestimated importance of the importance of legal regulation of administrative responsibility in the field of customs in the EAEU states. Administrative responsibility is a tool for ensuring compliance with the customs legislation of the EAEU and the legislation on customs regulation of each individual state. This is the foundation, the basis, why follow the rules if a disproportionately lenient punishment is established for their violation or such a measure is not established at all?

Several solutions to this problem are presented in scientific publications. Thus, representatives of the Belarusian State University propose to unify the legislation on customs offenses by creating a single unified act in the form of the Administrative and Criminal Codes of the EAEU on Customs Offenses, which would contain common principles, deadlines, criteria for bringing persons to administrative and criminal responsibility for committing customs offenses [3, p.184].

Some Russian legal scholars consider the application of model legislation to be the most successful method of harmonization, which, on the one hand, will allow, if necessary, to abandon the full implementation of model provisions, and on the other, is a recognized flexible legal instrument aimed primarily at improving their own legislation [2, p.190].  In any case, the use of the model law may require the transformation of the current legislation [6, p.381].

The most effective solution to the existing problem is the harmonization of the administrative legislation of the EAEU member states, i.e. the harmonization and harmonization of the norms establishing administrative responsibility in the field of customs in the following areas:

1) inventory of the composition of administrative offenses in the field of customs affairs by correlating the Codes of Administrative Offenses of the EAEU countries in order to avoid situations where responsibility is provided for a similar act in one country, but not in another.  For example, in the Russian Federation, administrative responsibility is established for failure to submit reports to the customs authority, but in the Kyrgyz Republic – not;

2) bringing administrative penalties into uniformity, in particular, administrative fines. The amount of fines, as well as at present, can be determined in the equivalents established by national legislation (ruble, base values, monthly calculation indices, etc.), but the difference in fines cannot be so significant. Since the level of well-being of the population in the EAEU countries varies, it seems most fair for the "key" compositions (illegal movement of goods; non-declaration or false declaration of goods; non-compliance with prohibitions and restrictions) to establish, following the example of the Russian Federation, fines that are multiples of the cost of goods. For the rest of the compositions, come to a compromise on the minimum amount of fines and make appropriate changes to national legislation;

3) bringing administrative legislation in line with the customs legislation of the EAEU;

4) unification of the limitation periods for bringing to administrative responsibility for offenses in the field of customs affairs. For example, in the Russian Federation, the statute of limitations is 2 years from the date of the commission of an administrative offense. In Kyrgyzstan, the statute of limitations varies depending on the subject: for individuals – 6 months from the date of the offense; for officials and legal entities – within 1 year from the date of the offense.

References
1. Shashkina, A.N. (2016). Measures of administrative responsibility for violation of customs rules. Vestnik of Russian Customs Academy, 1, 76-82. Retrieved from https://www.elibrary.ru/item.asp?id=25629546
2. Ryl'skaya, M.A., & Gumenyuk, V.P. (2020). Administrative responsibility for violation of customs rules: problems of application in the conditions of the Eurasian Economic Union. Collection of materials of the International Scientific and Practical Conference v 3-kh tt. Sankt-Peterburg. Retrieved from ://www.elibrary.ru/item.asp?id=44272271
3. Zaitseva, V.D., & Tararyshkina, L.I. (2019). Directions of unification of legislation on customs offences in the member States of the Eurasian Economic Union. Mezhdunarodnye otnosheniya: istoriya, teoriya, praktika. Materialy IX nauchno-prakticheskoi konferentsii molodykh uchenykh fakul'teta mezhdunarodnykh otnoshenii BGU. Minsk. Retrieved from https://www.elibrary.ru/item.asp?id=42307715
4. Kalmykova, A.V. (2019). Administrative responsibility in the field of technical regulation in the member States of the Eurasian Economic Union. Journal of Foreign Legislation and Comparative Law, 4, 78. DOI: 10.12737/jflcl.2019.4.6
5. Morozov, A.N., & Kashirkina, A.A. (2023). Functioning of the Eurasian Economic Union in the context of the deformation of the international legal order. International public and private law, 1, 18. doi:10.18572/1812-3910-2023-1-18-22
6. Tikhomirov, Yu. A., & Kotelevskaya, I. V. (1999). Legal acts. Moscow: Yurinformtsentr.

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A REVIEW of an article on the topic "Comparative legal analysis of administrative responsibility in the field of customs in the Eurasian Economic Union". The subject of the study. The article proposed for review is devoted to topical issues of administrative responsibility in the field of customs affairs in the Eurasian Economic Union. The author compares the individual compositions of administrative offenses in the countries of the Eurasian Economic Union, and also draws conclusions with regard to the need to generalize existing experience and certain unification. The subject of the study was the provisions of the legislation of the countries of the Eurasian Economic Union, the existing practice, and the opinions of scientists. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of administrative responsibility in the field of customs in the Eurasian Economic Union. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the legislation of the countries of the Eurasian Economic Union). For example, the following conclusion of the author: "The key stage of the movement of goods across the customs border of the EAEU is the declaration of goods. According to the EAEU Customs Code, goods are subject to customs declaration: 1) when they are placed under the customs procedure (paragraph 1 of Article 104 of the EAEU Customs Code); 2) goods for personal use (paragraph 4 of Article 258 of the EAEU Customs Code); 3) international transportation vehicles in cases provided for in paragraph 4 of Article 272 of the EAEU Customs Code; 4) supplies in accordance with paragraph 2 of Article 281 The EAEU Customs Code. The duty to carry out the customs declaration of goods is assigned to the declarant (sub-item 1, paragraph 2, Article 84 of the EAEU Customs Code). Let's analyze the administrative penalties for non-declaration of goods in the prescribed form in the EAEU member states." The possibilities of comparative legal research should be positively assessed. The author clearly depicts common and distinctive points in the law of the analyzed countries. Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of improving administrative responsibility in the field of customs in the Eurasian Economic Union is beyond doubt. Different regulations can lead to difficulties and violations of the rights of citizens and other subjects. It is difficult to argue with the author of the article that "A single customs legislation operates on the territory of the Eurasian Economic Union, while in each EAEU state there is national legislation establishing administrative responsibility for customs offenses and a subject of foreign economic activity that violated customs rules in the Russian Federation, and a subject of foreign economic activity that committed a similar offense in another country of the Union, they will be brought to administrative responsibility under various norms (different administrative sanctions will be applied to them)." Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "The main conclusion of the analysis is the revealed underestimated importance of the importance of legal regulation of administrative responsibility in the field of customs in the EAEU states. Administrative responsibility is a tool for ensuring compliance with the customs legislation of the EAEU and the legislation on customs regulation of each individual state. This is the foundation, the basis, why follow the rules if a disproportionately lenient punishment has been established for their violation or such a measure has not been established at all?" These and other theoretical conclusions can be used in further scientific research. Secondly, the author suggests ideas for improving the current legislation. In particular, according to the author, it is necessary to "bring administrative penalties into uniformity, in particular, administrative fines. The amount of fines, as well as at present, can be determined in equivalents established by national legislation (ruble, base values, monthly calculation indices, etc.), but the difference in fines cannot be so significant. Since the level of well-being of the population in the EAEU countries varies, it seems most fair for "key" compositions (illegal movement of goods; non-declaration or false declaration of goods; non-compliance with prohibitions and restrictions) to establish, following the example of the Russian Federation, fines that are multiples of the cost of goods. For the rest of the compositions, come to a compromise on the minimum amount of fines and make appropriate changes to national legislation." The above conclusion may be relevant and useful for law-making activities. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Administrative and Municipal Law", as it is devoted to legal problems related to issues of administrative responsibility. The content of the article fully corresponds to the title, as the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Shashkina A.N., Rylskaya M.A., Gumenyuk V.P., Zaitseva V.D., Tararyshkina L.I. and others). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the issues of improving legislation in the field of administrative responsibility in the field of customs in the Eurasian Economic Union. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"