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【Journal Name】 China Law【Title】 Landmark Revision of Law on Inspection of Imports,Exports
【Author】 Wang Bai【Area of Law】 Others
【Year】 In 2002【Issue】 3
【ESummary】 65
【Full text】 2013/3/24 16:27:37
【Remark】 1510089596
【Reference】   
  

The Law of the People's Republic of (name on the inspection or imports and Exports (heremarterreferred to as “the Law on the Inspection of Imports and Exports”) was previously adopted at the 6th Meeting of the Standing Committee of the 7th National People's Congress on February21, 1989, and went into effect on August 1, 1989. After its promulgation for enforcement, this law played an important role in strengthening the inspection of imports and exports, guaranteeing the quality of imports and exports, promoting China's foreign trade, safeguarding the legitimate rights and interests of all the parties concerned and laying a solid foundation for the smooth development of foreign trade relations.

But, along with the deepening of the process of China's reform and opening to the outside world over recent years, particularly since China's entry into the World Trade Organization(WTO) in November last year, many new situations and problems have occurred in the work of imports and exports inspection. Firstly, the provisions of the Law on the Inspection of Imports and Exports for the purposes of inspection, coverage of inspection, grounds for inspection, the procedure for inspection, etc. are not totally in accordance with the WTO's Agreement on Technical Barriers to Trade (hereinafter referred to as “the TBT agreement”).Secondly, China's imports and exports inspection administrative system has undergone relatively great reform over recent years while great changes have taken place in the work of imports and exports inspection. Because of such new changes, the general requirement on the law enforcement work of imports and exports inspection has become increasingly higher. Because of the need to facilitate the fulfillment of China's commitments to the WTO entry, further regulate the act of imports and exports inspection, and better maintain public interests and the legitimate rights and interests of all the parties involved in foreign trade, it became imperative to revise the Law on the Inspection of Imports and Exports.

Therefore, the Standing Committee of the 9th National People's Congress(NPC) reviewed the proposal of the State Council for the revision of the Law on the Inspection of Imports and Exports. According to relevant opinions of all the parties concerned, the NPC Standing Committee organized the revision and improvement of the draft amendments to the Law on the Inspection of Imports and Exports. On April 28, 2002,the NPC Standing Committee adopted the Resolution on Revising the Law of the People's Republic of China on the Inspection of Imports and Exports. Under this resolution, the revised Law on the Inspection of Imports and Exports shall become effective as of October 1,2002. The revision of the law mainly includes the following points:

1. Revisions made in accordance with relevant rules of the WTO and China’s commitments to the WTO entry:

1. On the purpose of inspection and the list of imports and exports subject to inspection:

The purpose of imports and exports inspection provided for by the previous Law on the Inspection of Imports and Exports was mainly intended to guarantee the quality of imports and exports, and the scope of inspection stipulated by the law includes the quality, quantity, weight and packaging of imports and exports and their conformity to relevant requirements on safety and hygiene. According to these provisions of the law, the State authorities for the inspection of imports and exports (hereinafter referred to as the State commodity inspection authorities), proceeding from the need of foreign trade development, formulated, readjusted and promulgated the Table of Types of Imports and Exports Subject to the Inspection of Imports and Exports Inspection Agencies. According to the TBT agreement, the purpose of the inspection of imports and exports is generally of these five points to protect human health and safety, to protect the life and health of fauna and flora, to protect the environment, to guard against fraudulent conduct and to safeguard national security. To facilitate the fulfillment of China's commitments to the WTO entry, relevant provisions of the previous Law on the Inspection of Imports and Exports have been revised this time in the following two respects:

Firstly, the provision for the legislative intent of the Law on the Inspection of Imports and Exports has been revised to: “This Law has been enacted with a view to strengthening the inspection of imports and exports, regulating the act of inspecting imports and exports, safeguarding public interests and the legitimate rights and interests of the parties involved in foreign trade, and promoting the smooth development of China's foreign economic and trade relations.”

Secondly, the provision for the purpose of the inspection of imports and exports has been revised from: The inspection of imports and exports shall proceed from “the need of foreign trade development,” to: “The inspection of imports and exports shall follow the principles of protecting human health and safety, protecting the life and health of fauna and flora, protecting the environment, guarding against fraudulent conduct and safeguarding national security.” Moreover, in accordance with international conventions, the Table of Types of Imports and Exports Subject to the Inspection of Imports and Exports Inspection Agencies has been changed to the List of Imports and Exports Subject to Inspection.

2. On the coverage of inspection of imports and exports:

According to the previous Law on the Inspection of Imports and Exports, the inspection of imports and exports covered the specification, quantity and weight of imports and exports as well as other commercial terms. To include commercial terms in the scope of legal inspection does not conform to relevant rules of the WTO and China's commitments to the WTO entry. This provision of the previous law often caused disputes in its implementation. In accordance with this reality and the statuesque of China, the provision for the coverage of inspection of imports and exports has been revised to: “The inspection of imports and exports that must been forced refers to the activity of qualification appraisal to determine whether imports and exports included in the list meet the compulsory requirements of relevant technical regulations of the State; the procedures of qualification appraisal include sample taking, inspection and examination; appraisal, verification and qualification insurance; registration, certification and approval; or the combination of these procedures.”

3. On the grounds for the inspection of imports and exports:

According to the TBT agreement, as grounds for the inspection of imports and exports, technical regulations are compulsory while standards are noncompulsory. The Chinese Law on Standardization classifies standards into compulsory standards and recommended standards, which are different from the expressions of the TBT agreement. China has made a commitment to use the expressions of technical regulations and standards under the TBT agreement. In the revision this time, the provision of the Law on the Inspection of Imports and Exports in this respect has been revised to: “For the imports and exports included in the list, they shall be inspected in accordance with the compulsory requirements of relevant technical regulations of the State; where no compulsory requirements of relevant technical regulations of the State have been made, they shall be made in a timely manner in accordance with law; and before the making of compulsory requirements concerned, inspection can be enforced in accordance with relevant foreign standards designated by the State commodity inspection authorities”

4. On the administration of certification and verification:

Under current law, China applies a system of licensing for the quality (or safety) of imports and exports and a system of compulsory certification for domestic products. Such an approach neither meets the objective requirement of the economic development in China, nor meets the principle of national treatment stipulated by relevant agreements of the WTO. Therefore, China has made a commitment to unify the standards, catalogues, signs and fee charges for both the system of licensing for the quality (or safety) of imports and exports and the system of compulsory certification for domestic products in future. In the revision this time, the relevant provision of the Law on the Inspection of Imports and Exports has been revised to: “The State commodity inspection authorities shall, in accordance with the nationally unified certification system, enforce the administration of certification of relevant imports and exports.”

Imports and exports inspection agencies enforce the administration of verification for some civilian imports, which is not only a form of inspection, but is also a function of imports and exports inspection agencies. As this approach is very important, its scope and coverage should be defined by law. Therefore, in the revision this time, anew provision has been added to the Law on the Inspection of Imports and Exports: “Commodity inspection agencies shall, in accordance with this Law, enforce the administration of verification of imports and exports covered by the system of licensing by checking the documentation concerned, to determine whether the relevant imports and exports conform to the documentation concerned.”
谨防骗子
Moreover, according to the TBT agreement and China's commitments to the WTO entry, another relevant new provision has been added to the Law on the Inspection of Imports and Exports in its revision this time: “The functionaries of the State commodity inspection authorities and commodity in section agencies shall, in performing their duty of inspecting imports and exports, be under the obligation to keep secret the business secrets that they are familiar with.”

H. Revision of provisions obviously not meeting the realities of imports and exports inspection:

Along with the deepening of the process of reform of government institutions in China over recent years, great changes have taken place in the work of imports and exports inspection. To meet the new situation, the provisions of the Law on the Inspection of Imports and Exports that obviously did not meet the realities of the work of imports and exports inspection have been revised in the revision this time. The revision of such provisions mainly include the following:

1. The provision for the subject and place for declaring imports for inspection has been revised to: “For consignees or their agents of imports subject to the inspection of commodity inspection agencies in accordance with this Law, they shall declare for inspection their imports to the commodity inspection agencies at the place of Customs declaration; imports inspected shall be checked and released by the Customs upon the presentation of the certificate of Customs clearance of goods issued by the commodity inspection agencies concerned.”

2. The provision for the time limit for inspection enforceable by imports and exports inspection agencies has been revised from: “The imports and exports inspection agencies concerned shall complete the inspection and issue a certificate of inspection within the period of validity of claims prescribed in the foreign trade contract concerned, “and ”The imports and exports inspection agencies concerned shall complete the inspection and issue a certificate of inspection without delaying the prescribed time limit for shipment,” to “The imports and exports inspection agencies concerned shall, within the time limit prescribed by the State commodity inspection authorities on a unified basis, complete the inspection and issue a certificate of inspection.”

3. As China no longer applies the system of stationing exports inspectors in manufacturers, and as it is still very necessary to enforce supervision and inspection over the quality of some exports before they leave the manufacturer, the provision for assigning inspectors to manufacturers of exports to participate in supervising the inspection of quality of exports has been revised to: “Imports and exports inspection agencies can, proceeding from the need to facilitate foreign trade and in accordance with relevant legal provisions of the State, enforce the administration of quality supervision and inspection over exports included in the list before they leave the factory.”

4. Under the previous Law on the Inspection of Imports and Exports, the subjects for declaring imports and exports for inspection were consignors and consignees only. Along with the rapid development of economy over recent years, there are more and more circumstances in which consignors or consignees authorize agents to declare imports or exports for inspection on behalf of them. As it became imperative to legally define the status and competence of such agents as well as the legal procedure for the declaration of imports or exports by authorized agents, a new provision to this effect has been added to the law in its revision this time “For agents handling the affairs of declaring imports or exports for inspection on behalf of the consignor or consignee, they shall register themselves with the imports and exports inspection agencies concerned; in declaring imports or exports for inspection, they shall present a letter of authorization to the imports and exports inspection agencies concerned.”

5. The provision for authorizing inspection agencies to provide services of inspection has been revised to: “The State commodity inspection authorities can, in accordance with relevant legal provisions of the State, authorize after examination qualified Chinese and foreign inspection agencies to conduct authorized business of inspecting and appraising imports and exports.” Under this provision, the qualifications of such inspection agencies to conduct the authorized business of imports and exports inspection in China, either Chinese or foreign, shall be recognized by the State commodity inspection authorities on a unified basis.

Ⅲ. Revisions intended to strengthen the establishment of ranks of inspectors, establish and improve the system of law enforcement supervision:

To ensure that the State commodity inspection authorities and imports and exports inspection agencies would perform their official duties strictly in accordance with law, it became imperative to strengthen the establishment of ranks of imports and exports inspectors, establish and improve the system of supervision over law enforcement, and guard against corruption in law enforcement. Therefore, on the basis of summing up the experience and extensively soliciting opinions, three new provisions to this effect have been added to the Law on the Inspection of Imports and Exports in its revision this time:

1.Article 30 of the revised law provides: “In performing official duties, the State commodity inspection authorities and imports and exports inspection agencies must abide by law, safeguard national interests, strictly enforce law in accordance with their jurisdiction prescribed by law and the legal procedure concerned, and accept supervision.

The State commodity inspection authorities and imports and exports inspection agencies shall, proceeding from the need to perform official duties in accordance with law, strengthen the establishment of their ranks in order that their imports and exports inspectors will be of fine political and professional qualities. For imports and exports inspectors, they shall regularly receive professional training and take tests, and can take their posts to perform official duties only after they are found to be qualified through examination.

Imports and exports inspectors must be faithful in the discharge of their official duties, provide services in a civilized way and abide by professional ethics, and may not abuse their power to seek personal gains.”

2. Article 31 of the revised law provides: “The State commodity inspection authorities and imports and exports inspection agencies shall establish and improve internal supervisory systems, to exercise supervision and inspection over the activities of their functionaries to perform official duties.

The functions and authority of major posts at imports and exports inspection agencies responsible for processing applications for inspection, inspecting imports and imports, issuing certificates, releasing goods, etc. shall be clearly defined, be separated from one another and strict one another.”

3. Article 32 of the revised provides:“Any institution or individual shall have the right to accuse the State commodity inspection authorities and imports and exports inspection agencies as well as their functionaries of behavior in violation of law or disciplines, or report such behavior to competent authorities. For the authorities receiving accusations or reports to this effect, they shall process them within their jurisdiction in a timely manner in accordance with law, and shall keep secret for the parties making such accusations or reports.”

Ⅳ. Revision of provisions that were obviously inconsistent with relevant provisions of other Chinese laws:

Since the previous Law on the Inspection of Imports and Exports was put to enforcement in August 1989,China has revised some of its laws and administrative regulations continuously. As a result, some of the provisions of the previous Law on the Inspection of Imports and Exports became inconsistent with those of other Chinese laws and administrative regulations revised. Therefore, it also became imperative to make revisions to the Law on the Inspection of Imports and Exports accordingly. In the revision this time, the following changes have been made to this effect:

1. In accordance with the Criminal Law of China revised in 1997, the chapter of the Law on the Inspection of Imports and Exports on legal responsibility has been revised and replenished to make it consistent with relevant provisions of the Criminal Law. For some lawbreaking acts, the revised law makes new provisions for such punitive measures as confiscating the illegal gains, ordering the stop of illegal operations and ordering the stop of import or export, contributing to strengthening the enforcement of law on imports and exports inspection. Meanwhile, the revised law also makes new provisions for relevant legal responsibility assumable by functionaries of the State commodity inspection authorities and imports and exports inspection agencies for lawbreaking acts.

2. In accordance with the Law on Administrative Review and the Law on Administrative Procedure of China, the provision of the Law on the Inspection of Imports and Exports for remedies has been revised to: “Where parties concerned refuse to accept a conclusion of reinsertion drawn by imports and exports inspection agencies or the State commodity inspection authorities, or refuse to accept a decision on punishment made by imports and exports inspection agencies, they can apply for administrative review in accordance with law, or can file a lawsuit with a People’s Court in accordance with law.”

To sum up, the current revision of the Law on the Inspection of Imports and Exports is in fulfillment of China’s commitments to the WTO entry, in accordance with the realities of the work of imports and exports inspection, and in embodiment of the legislative intent of improving the system of imports and exports inspection and providing better services for the parties concerned. It will produce far reaching influence on and play a great role in strengthening the work of imports and exports inspection, regulating the act of imports and exports inspection, maintaining public interests and the legitimate rights and interests of all the parties involved in foreign trade, and promoting the smooth development of China's foreign economic and trade relations.三年不开张,开张吃三年


 

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