Laws of the People's Republic of China

General Administration of Customs

Order of the General Administration of Customs

No.145

The Measures for Administrative Punishment Hearings of the Customs of People's Republic of China , which were adopted through discussion at the executive meeting of the General Administration of Customs on December 27, 2005, are hereby promulgated, and shall come into force as of March 1, 2006.

Director General of General Administration of Customs, Mu Xinsheng

January 26, 2006

Measures for Administrative Punishment Hearings of the Customs of People's Republic of China

Chapter I General Provisions

Article 1

The present Measures are formulated according to the Administrative Punishment Law of the People's Republic of China, Regulation of the People's Republic of China on the Implementation of Customs Administrative Punishment and the provisions of other relevant laws and administrative regulations with the view of regulating the procedures of hearings on customs administrative punishment, and protecting the lawful rights and interests of citizens, legal persons and other organizations.

Article 2

The present Measures shall be applicable to the hearings upon the application of the parties before the custom making a decision on administrative punishment.

Article 3

The customs shall, before making any decision of administrative punishments such as suspension of relevant businesses, suspension of practice in customs declaration, revocation of customs registration, cancellation of qualification on the practice of customs declaration, and imposing a fine of more than RMB 10,000 Yuan upon a citizen, or imposing a fine of more than RMB 100,000 Yuan upon any legal person or other organization, confiscation of the relevant goods, articles, smuggling means of transport, and etc., notify the parties of their rights to request for holding hearings; if the parties request for a hearing, the customs shall organize it.

Article 4

The principle of openness, fairness, justness, and convenience for the people shall be followed for the hearings of customs administrative punishment. The hearings of customs administrative punishment shall be held openly, unless any state secret, business secret or personal privacy is involved.

Chapter II Organs and Personnel to Organize Hearings

Article 5

The hearings on the cases of customs administrative punishment shall be organized by the department for the trial of customs administrative punishment cases. The hearings involving punishment on intellectual property rights cases shall be organized by the department of legal affairs of the customs; the hearings involving punishment on qualifications cases shall be organized by the department of the customs that makes the decision on qualification punishment.

Article 6

A presider and a clerk shall be designated to organize the hearing, and if necessary, another one up to four hearing members may be designated to assist the presider to organize the hearing.

In case of the hearing involves any professional customs knowledge, the hearing organization organ may invite the relevant experts of the customs business to act as a hearing member..

Article 7

A hearing presider shall perform the following functions:

1.

Determining to postpone or suspend the hearing;

2.

Asking questions on the facts of the case, the basis to make the administrative punishment, and the reasons thereof;

3.

Requiring the participants in the hearing to provide or supplement evidence;

4.

Presiding over the hearing procedures and maintaining the hearing order, and stopping acts in violation of the hearing disciplines; and

5.

Determining whether the relevant witnesses or authenticators may take part in the hearing.

Article 8

In case any presider, hearing members or clerk has any of the following circumstances, he shall withdraw by himself, and the parties and their agents also have the right to apply for their withdrawal:

1.

He is the investigator of the case;

2.

He is a close relative of any of the parties concerned or the investigators of the case;

3.

He has acted as a witness or authenticator of the case; or

4.

He has an interest relationship with the handling result of the case.

The preceding provisions shall be applicable to interpreters and authenticators.

The withdrawal of any hearing member, clerk, interpreter, or authenticator shall be determined by the presider; the withdrawal of the hearing presider shall be determined by the person-in-charge of the hearing organization organ, if the hearing presider is the person-in-charge of the hearing organization organ, his withdrawal shall be determined by the person-in-charge of the customs that holds the hearing.

Chapter III Rights and Obligations of the Participants and Other Personnel in the Hearing

Article 9

The participants in the hearing include the parties and their agents, the third party and its/his agent, and the case investigators; other personnel shall include witnesses, interpreters, and authenticators.

Article 10

The parties shall enjoy the following rights:

1.

Taking part in the hearing by using the languages of their own nationalities;

2.

Applying for or giving up the hearing;

3.

Applying for not holding the hearing in public;

4.

Entrusting an attorney or other personnel to act as the agent for the hearing;

5.

Making statements, arguments, presenting proof, and making cross-examination; and

6.

Referring to and making modifications on the hearing records, and confirming them through signature.

Article 11

Any citizen, legal person, or other organization that has direct interests relationship with the handling result of a case may attend the hearing as a third party if he/it requests.

Article 12

The parties and the third party may entrust one or two agents to attend the hearing. The agents shall enjoy the equal rights with the principal within the delegated power, and perform equal obligations.

Article 13

In case any party or third party entrusts any agent to attend the hearing, he/it shall submit the power of attorney to the customs before the hearing is held. The following matters shall be specified in the power of attorney:

1.

The brief information of the principal and its/his agent;

2.

The power of agency of the agent;

3.

The starting and ending time for the power of agency; and

4.

The date of entrustment and the seal of the principal.

In case any principal cancels the entrustment in advance, it/he shall notify the hearing organization organ in written form.

Article 14

The case investigators shall refer to the staff members of the customs who undertake investigations and gather evidence for administrative punishment cases and attend the hearings thereof.

During the course of hearings, the case investigators shall state the illegal facts of the parties, and show the evidence thereof, describe the decision on administrative punishment to be made, and the legal basis thereof, and make cross-examination and argument with the parties.

Article 15

Upon the approval of the hearing presider, the case investigators, the parties, and the third party may request the witnesses to attend the hearing, and provide the witnesses' basic information one day before the hearing is held.

Article 16

The customs shall retain the interpreters for participants and other personnel in the hearings who are not familiar with the local language.

Where there is necessity to make an authentication concerning the professional technical issues, the customs shall hand them over to the customs laboratory test authentication organ or entrust other organs recognized by the state to make an authentication. Upon the approval of the hearing presider, the parties and their agents, the third party and his/its agents, and case investigators may request the authenticators to attend the hearing.

Article 17

The parties and their agents, the third party and its/his agent, case investigators, witnesses, interpreters, and authenticators shall attend the hearing on schedule, observe the hearing disciplines, and answer the questions of the hearing presider truthfully.

Chapter IV Application for Hearings and the Decisions Thereof

Article 18

The parties concerned shall, within 3 days from the day when the customs house informs them of their rights to apply hearing, file an application for hearings to the customs in written form. If the application is filed by mail, the application date shall be the date shown in the postmark.

In case any party fails to file an application for the hearing within the prescribed time limit due to force majeure or other special circumstances, it/he may file an application for hearing within 3 days after the obstacle is eliminated upon the approval of the customs.

Article 19

If the customs determines to organize a hearing, it shall hold the hearing within 30 days from the day when it receives the application for hearing, and serve the Notice of Hearing on Customs Administrative Punishment (See Annex I) to the parties seven days before the hearing is held.

The Notice of Hearing on Customs Administrative Punishment shall specify the name of the parties, the title of the case to be heard, the time and place for holding the hearing, affix the special seal of the customs administrative case , and may also specify the following matters:

1.

Whether the hearing shall be held openly. If the hearing is not to be held openly, the reasons shall be explained ;

2.

The name of the hearing presider, hearing members, and the clerk;

3.

The requirement to the parties to submit the name list and identity certificates of the personnel participating in the hearing, , to prepare the relevant evidence materials, , and to notify the witnesses and other matters;

4.

Rights and obligations of the parties and their agents; and

5.

Other relevant matters concerned.

Article 20

Under any of the following circumstances, the customs house shall make a decision on not holding a hearing:

1.

The applicant is not a party or its agent of the case in question;

2.

The applicant fails to file an application for hearing within the time limit as prescribed in Article 18 of the present Measures; or

3.

It does not fall within the scope as prescribed in Article 3 of the present Measures.

If the customs house determines not to hold a hearing, it shall make a Notice of Not Holding Hearing on the Customs Administrative Punishment (See Annex II) within 5 days from the day when it receives the application for hearing, and serve the applicant in a timely manner.

Article 21

In case two or more parties file an application for hearing respectively on a same administrative case, the hearing may hold jointly.

If there are two or more parties in a case, and only some of the parties concerned file an application for hearing, the customs house may notify other parties to attend the hearing.

If only part of the parties concerned take part in the hearing, the hearing may be hold only on the facts, evidence, and law application concerning these parties, but the custom shall make a decision on punishment in a joint way after the hearing finished .

Chapter V Holding of the Hearing

Article 22

During the hearing process, the participants and other personnel in the hearing shall abide by the following hearing disciplines:

1.

The hearing participants and other personnel shall observe the hearing order, and can not make statements and arguments until after the hearing presider agrees;

2.

The auditors shall not affect the normal going of the hearing; and

3.

Anyone who wishes to make audio recording, video recording, photographing, and interview shall report to the hearing presider for approval beforehand.

Article 23

The following procedures shall be followed for the hearing:

1.

The shall verify the identity of the parties and their agents, the third party and its/his agent, and the case investigators;

2.

The hearing presider shall announce the name list of the hearing participants, interpreters, and authenticators, and inquire the parties and their agents, the third party and its/his agent, and case investigators whether they want to apply for withdrawal;

3.

The announcement of the hearing disciplines;

4.

The hearing presider shall announce that the hearing begins and introduce the causes for the case;

5.

The case investigators shall state the illegal facts of the parties, show relevant evidences, and bring forward the decisions and basis for making administrative punishment;

6.

The parties and their agents make statements and arguments, and bring forward opinions and allegations;

7.

The third party and its/his agent make statements, and bring forward opinions and allegations;

8.

The hearing presider asks questions on the facts of the case, the evidence thereof, and the basis for punishment;

9.

The parties and their agents, the third party and its/his agent, and case investigators make cross-examination and arguments;

10.

The parties and their agents, the third party and its/his agent, and case investigators make final statements; and

11.

The announcement of the ending of the hearing.

Article 24

The parties and their agents, the third party and its/his agent, and the case investigators shall make cross examination on the truthfulness, authenticity and connection of the evidences, aiming at whether the evidence has any effectiveness of proof and the extent of the effectiveness of proof .

Upon the approval of the hearing presider, the parties and their agents, the third party and its/his agent, and the case investigators may ask questions mutually in respect of the evidence, or may ask questions to the witnesses or authenticators. No one may ask any question by such language or ways as inducing, threatening or insulting, and etc., the content of questions shall have connection with the facts of the case.

Article 25

When making cross examination on documentary evidence, material evidence and audio-visual reference materials, the parties and their agents, the third party and its/his agent, and the case investigators shall show the originals or the original things of the evidence; they may not show the originals or the original things under one of the following circumstances:

1.

If it is really difficult to show the originals or the original things, they may show the duplicates or the reproduced products upon the approval of the hearing presider; or

2.

If the originals or the original things do not exist any longer, but it can prove that the duplicates or the reproduced products are consistent with the originals or the original things.

The audio-visual reference materials shall be broadcast or demonstrated at the conference of hearing, and shall be recognized after being cross-examined.

Article 26

The hearing shall be postponed under any of the following circumstances:

1.

The parties or their agents are unable to attend the hearing due to force majeure or other justifiable reasons;

2.

The hearing presider, hearing personnel or the clerk shall withdraw upon temporary decision, and it is unable to determine the substituting person on site;

3.

There are circumstances of merger, division or other circumstances of reorganization of assets by any legal person or other organization that acts as the party, and there is necessity to wait for the successor of the rights and obligations; or

4.

Other circumstances under which the hearing shall be postponed according to law.

After the reasons for postponing the hearing are eliminated, the hearing presider shall determine the time for holding the hearing once again, and notify the participants and other personnel in the hearing in written form.

Article 27

Under any of the following circumstances, the hearing shall be suspended:

1.

There is necessity to notify new witnesses to attend the hearing or to make an authentication once again or supplement any evidence;

2.

The parties are unable to attend the hearing for the time being due to force majeure or other justifiable reasons;

3.

The participants and other personnel in the hearing do not observe the hearing disciplines, which results in the chaos of the hearing order; or

4.

Other circumstances under which the hearing shall be suspended according to law.

After the reasons for suspension of the hearing are eliminated, the hearing presider shall determine the time for resuming the hearing, and notify the participants and other personnel in the hearing in written form.

Article 28

Under any of the following circumstances, the hearing shall be terminated:

1.

The parties withdraw the application for hearing;

2.

The parties fail to attend the hearing on schedule without justifiable reasons;

3.

The parties exit the hearing during the holding of the hearing without justifiable reasons;

4.

The parties die or the legal person or other organization that acts as one party is terminated without any successor of the rights and obligations; or

5.

Other circumstances under which the hearing shall be terminated according to law.

Article 29

Written transcripts shall be made for the hearings. The written transcripts for the hearings shall specify the following matters:

1.

Causes of the case;

2.

Name or title of the participants and other personnel in the hearing;

3.

Name of the hearing presider, hearing members or clerk;

4.

Time, place and ways for holding the hearing;

5.

The facts and evidence of this case brought forward by the case investigators and the decision and basis for the administrative punishment to be made;

6.

The contents of statements, arguments and cross-examination;

7.

Testimony of the witnesses; and

8.

Other matters that shall be listed as required.

Article 30

The written transcripts for the hearing shall be signed or sealed by the participants and other personnel in the hearing page by page after they have confirmed that there is no error in it. If anyone demurs about the contents of the transcripts, he may make corrections on site and confirm it with signature or seal.

If any participant or other personnel in the hearing refuses to sign his name or seal, the clerk shall indicate this on the written transcripts of the hearing.

Chapter VI Supplementary Provisions

Article 31

In case any hearing presider, hearing member or clerk violates the relevant provisions of the present Measures, and the circumstance is serious, his entity shall give him an administrative punishment according to law in accordance with the relevant provisions.

Article 32

Serving of legal documents as prescribed in the present Measures shall be done in accordance with the provisions of the Civil Procedure Law of the People's Republic of China .

Article 33

The "day" as mentioned in the present Measures shall refer to the workday, the terms "above", "within" and "before" shall all include the said number itself.

Article 34

The fees for organizing the hearings on customs administrative punishment shall be borne by the customs house.

Article 35

The power to interpret the present Measures shall remain with the General Administration of Customs.

Article 36

The present Measures shall be implemented as of March 1, 2006. The Interim Measures of the People's Republic of China for Hearings on Customs Administrative Punishments, which were promulgated on November 12, 1996 by the General Administration of Customs, shall be abolished simultaneously. Annex I:The__________ ___Custom of People's Republic of China

Notice of Hearing on Customs Administrative Punishment

Custom No:[___]

_____________________:

Through the examination, the hearing applied by you (your enterprise) were accorded with the provision of Article 42 of Administrative Punishment Law of the People's Republic of China, and Article 49 of Regulation of the People's Republic of China on the Implementation of Customs Administrative Punishment. The Custom decided to hold the hearing on____________case. Please you (your enterprise) attend the hearing at___________on____________.

(seal of the Custom)

______(year/month/day) Annex II:The___________________Custom of People's Republic of China

Notice of Not Holding Hearing on the Customs Administrative Punishment

Custom No:[___]

_______________:

Through examination, the hearing applied by you (your enterprise) were belonged to the circumstance of iterm________thereinafter:

1.

The applicant is not a party or its agent of the case in question;

2.

The applicant fails to file an application for hearing within the time limit as prescribed;

3.

It does not fall within the scope of the hearing according to law.; or

4.

______________________________________________.

The Custom decided not to hold the hearing in accordance with the provision of Article 42 of Administrative Punishment Law of the People's Republic of China, and Article 49 of Regulation of the People's Republic of China on the Implementation of Customs Administrative Punishment.

(seal of the Custom)

_________(year/month/day)