Customs law. 2 Norms of customs law (E. O. Filippova, 2013)

Introduction to Customs Law

Definition 1
Customs law is a branch of Russian legislation, consisting of a system of legal norms and regulating social relations that are associated with the movement of goods and vehicles across the border.

Customs law is a complex field that includes provisions from many branches of law:

international,
constitutional,
criminal,
administrative,
civil,
financial

Concept and norms of customs law

Customs law is a means of state regulation of customs affairs on the territory of the Russian Federation, since legal regulation is, in principle, state regulation. Without customs law, it is impossible to create a normally functioning customs mechanism, which is based on the system of executive power represented by customs authorities. Customs law ensures the organic interrelation of all elements that make up customs business in the Russian Federation. Implementation of customs business is impossible without legal regulation of relations arising in this area. For the study, research, improvement and practical application of both customs legislation and the entire complex of legal norms regulating the procedure and rules for the movement of goods and vehicles across the customs border of the Russian Federation, the concept of customs law is used. Customs law combines all rules relating to the movement of goods and vehicles by persons across the customs border. These rules are contained in the Labor Code, as well as in other federal laws affecting certain aspects of the movement of goods across the customs border. Thus, customs law is a complex branch of Russian legislation, which is a system of legal norms of various industry affiliations, which are established by the state and are intended to regulate social relations related to the movement of goods and vehicles across the customs border of the Russian Federation. Customs law refers to a fairly wide range of legal institutions of various legal natures (from customs procedures, regimes, payments and control to customs offenses and the organization of service in customs authorities), united by one term - “customs business”. The main methods of legal regulation in legal theory are :

prescriptive (imperative) method,
permissive (dispositive) method.

The main one for customs law is the imperative method , i.e. the method of authoritative instructions: a person, when carrying out foreign economic activity, necessarily enters into certain relations with state (customs) authorities, which dictate to him the rules of behavior in this area. The limits of the dispositive method are significantly limited. In the field of customs, it is used only in cases where the behavior of subjects is regulated by civil law. A norm of customs law is a rule of conduct for participants in customs legal relations, which regulates their behavior, indicating the necessary conditions that give rise to the emergence of a legal relationship, defining the subject composition, establishing rights and obligations, as well as sanctions for improper execution of such a rule. A feature of customs legal norms, like all legal norms, is their protection by the possibility of coercion by the state. In the system of customs legislation, the rule of law finds its expression in a normative prescription, that is, in the very text of articles, paragraphs or other parts of specific regulations. Customs law contains mainly regulatory norms that define the rights and obligations of participants in legal relations, the conditions for their occurrence and action. Law enforcement norms, i.e. norms that determine the conditions for applying state coercive measures to a subject, the nature and content of these measures, occupy a significantly smaller place in customs law. In accordance with the methods of legal regulation of public relations, which include permissions, regulations, prohibitions, the norms of customs law can be divided into :

on authorizing;
binding;
prohibiting.

Enabling norms are norms that give participants in customs legal relations certain rights, the use of which depends on the discretion of such participants (for example, the declarant has the right to submit a customs declaration to any customs authority authorized to accept declarations; the declarant has the right to declare goods independently or entrust it to a customs broker) . Binding are norms that provide for a certain type of behavior in appropriate conditions (for example, when declaring goods and performing other customs operations, the declarant is obliged to file a customs declaration and provide the customs authority with the necessary documents and information; at the request of the customs authority, he must present the declared goods; pay customs duties or ensure their payment). Prohibiting norms include norms that establish, in the form of a direct prohibition, the obligation to refrain from performing certain actions (in particular, goods released by customs authorities without submitting documents confirming compliance with restrictions established in accordance with the legislation on state regulation of foreign trade activities are prohibited from transfer to third parties, including through their sale or alienation in any other way, and in cases where import restrictions are established in connection with checking the quality of goods or the safety of their consumption, their use in any form is prohibited). The structure of a norm of customs law contains such elements as a hypothesis that determines the circle of persons to whom the norm is addressed, as well as the circumstances of its implementation; disposition containing the rule of behavior itself, expressed in the form of duties and rights of participants in a legal relationship; a sanction indicating measures of state coercion for violating a disposition. The articles of the Labor Code contain for the most part a detailed regulation of the rights and obligations of participants in legal relations and the conditions under which they operate, i.e., the dispositions and hypotheses of the relevant norms. Sanctions to these norms are usually highlighted in separate articles of the Labor Code or other acts. When considering the norms of customs law from the point of view of the detail of the legal regulation of regulated relations, the choice of behavior options in customs law, imperative norms prevail, i.e. norms that do not allow deviations from the rules contained in them. These types of norms are typical for norms of public legal regulation, including customs law, where the parties are in an unequal position in the legal sense. Most of the norms of the Labor Code are expressed in categorical instructions; they contain a clear definition of the rights and obligations of participants in legal relations, excluding the possibility of choosing behavior options. The predominance of imperative norms does not exclude the presence in customs law of norms that provide participants in legal relations with the opportunity to determine or specify the rights and obligations of the so-called dispositive norms. In particular, a person has the right at any time to choose the customs regime established by the Customs Code or change it to another. As a dispositive norm, one can also consider a norm according to which, after the arrival of goods and the submission of documents for the goods to the customs authority, the latter can be unloaded or reloaded, placed in a temporary storage warehouse, declared for a certain customs regime or under the internal customs transit procedure. In this case, the person moving the goods determines his own actions. In terms of the degree of certainty in customs law, absolutely certain norms prevail. Due to the public legal nature of customs law, relatively specific norms are practically not used in regulating legal relations. Blanket norms, i.e. norms that do not directly contain a specific rule of behavior, are not as widespread in customs law as, for example, in criminal or administrative law. Nevertheless, they are used to regulate certain legal relations, providing for the presence of other rules contained in other normative legal acts. In particular, the Labor Code contains rules on compliance with prohibitions and restrictions when moving goods across the border. The customs legislation system is a set of regulatory legal acts (laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, etc.) containing the rules of law governing relations when moving goods and vehicles across the customs border and, accordingly, the procedure for carrying out customs control. Thus, customs legislation serves as an external form of existence of legal norms, having its own internal organization. The basis of the customs legislation system is a normative act or part of it, possibly an article. The TC considers the system of customs legislation depending on the legal force of normative legal acts of various forms and the place of the body issuing them among the rule-making bodies. The Customs Code and other federal laws form customs legislation. Other normative acts containing norms of customs law form an independent group of normative legal acts, the norms of which can regulate customs relations. The range of such normative legal acts may include decrees of the President of the Russian Federation, which should not contradict the Labor Code and other laws. On the basis of and in pursuance of the norms of the Labor Code and other laws, decrees of the President of the Russian Federation, the Government of the Russian Federation has the right to adopt resolutions containing norms of customs law.

Customs law norms

The norms of customs law must satisfy the interests of participants in foreign trade activities and directly the interests of the state itself. This rule was established by the state itself, and it regulates relations in the field of customs law. Customs law is characterized by the following features:

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the spread of norms occurs to all participants who are associated with the movement of goods across the border (universality),
norms of customs law are mandatory for everyone (generally binding),
legal liability for failure to comply with customs law - offenses in this area are regulated by the Code of the Russian Federation and the Criminal Code

Powers regarding foreign economic activity are assigned to the customs authorities.

Definition 2

The subject of customs law is understood as social relations arising as a result of the movement of goods or vehicles across the state customs border. One of the key phrases in customs law is: “movement across the border.” Everything that moves across the state border falls under the branch of customs law

Customs law has its own methods:

The administrative-legal method is the main method, customs law is the method of government regulations. This method is based on the relationship of power and the party subordinate to it,
civil method
Customs is a rather specific area in which strict procedures have been established for the movement of goods or vehicles across the border.

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In their activities, customs authorities use the following methods of activity.

ban,
permission,
obligation.

These methods are typical for any legal regulation. Alternative actions in relation to persons who move goods across the border may be allowed only within certain parameters. This alternative allows them to be regulated using the civil law method. This method is rarely used in customs law, as it is characteristic of civil law. An example would be a foreign trade participant asking a customs broker for help.

Relationships that arise at the time of movement of goods or vehicles across the border and regulated by customs law are called customs legal relations.

Customs legal relations are quite specific. This is due to the fact that customs legal relations operate only on the basis of customs regulations. Customs regulations are individualized in their specificity, because they involve subjects who are bearers of legal rights and obligations.

This legal relationship is of a property nature, implying the movement of material assets and funds.

Legal relations in customs are specific due to their direct participants - the customs authority.

Definition 3

A customs authority is a subject of customs law that is vested with special powers.

These powers are given to the customs authority by customs legislation. In customs legislation, there is interaction between different types of subjects, and often the goals and interests do not coincide or are opposite.

Effect of acts of customs legislation and other legal acts of the Russian Federation in time

Acts of customs legislation, decrees of the President of the Russian Federation and decrees and orders of the Government of the Russian Federation (hereinafter referred to as other legal acts of the Russian Federation) apply to relations arising after their entry into force and do not have retroactive force, except for cases when these acts directly provide for this, and also when this is provided for by federal laws or international treaties of the Russian Federation.

Acts of customs legislation and other legal acts of the Russian Federation that improve the situation of persons have retroactive effect if they directly provide for this.

In other cases, acts of customs legislation and other legal acts of the Russian Federation may have retroactive effect if this is provided for by federal laws or international treaties of the Russian Federation.

Acts of customs legislation come into force no earlier than one month from the date of their official publication.

Prohibitions, restrictions or requirements in the field of customs affairs established by other legal acts of the Russian Federation shall come into force no earlier than one month after the date of official publication of these acts, except in cases where:

the relevant provisions of acts of legislation, on the basis and in pursuance of which other legal acts of the Russian Federation are issued, aimed at ensuring compliance with the prohibitions and restrictions established in accordance with the legislation of the Russian Federation on state regulation of foreign trade activities, directly provide for their implementation in a shorter period of time;
The Labor Code has established a special procedure for enacting these prohibitions, restrictions or requirements.

In cases directly provided for by acts of customs legislation and other legal acts of the Russian Federation, the Federal Customs Service of Russia, within the limits of its competence, issues legal acts in the field of customs affairs.

Regulatory legal acts of the Federal Customs Service of Russia are subject to state registration (with the Ministry of Justice of Russia) and official publication in the manner established for state registration and official publication of regulatory legal acts of federal executive authorities.

Regulatory legal acts of the Federal Customs Service of Russia come into force no earlier than 10 days after the day of their official publication, except in cases where:

the relevant provisions of acts of customs legislation and other legal acts of the Russian Federation, on the basis and in pursuance of which regulatory legal acts of the federal ministry authorized in the field of customs affairs are issued, are put into effect in a shorter period of time;
The regulatory legal acts of the Federal Customs Service of Russia establish a more preferential procedure than the current one. In this case, such acts may enter into force within a shorter period of time or have retroactive effect;
The Labor Code has established a special procedure for the entry into force of regulatory legal acts of the Federal Customs Service of Russia.

Regulatory legal acts of the Federal Customs Service of Russia affecting the rights and legitimate interests of persons in the field of business and other economic activities can be appealed to an arbitration court in accordance with the legislation of the Russian Federation on legal proceedings in arbitration courts.

Customs legislation norms

The legal framework of the customs department also underwent changes and expanded significantly during the 19th century.

Elements of international customs law in Russia in the 19th century were reflected in the regulation on neutral trade for 1811 in the ports of the White, Baltic, Black and Azov seas and along the entire western land border dated December 19, 1810. The regulation contained a list of goods.

Prohibited goods detained at the border could be confiscated or destroyed, and those responsible for bringing them were brought before the court and sent into exile. The merchant who ordered the prohibited goods, or his clerk involved in this, or his authorized representative, was subject to accusation; if there were no such persons, then the skipper was responsible.

Customs rules were directed against trade with France, because French goods were among those prohibited from importation.

The Customs Charter of 1819 repeated the norms of customs legislation of previous documents.

In 1845, a code of punishments was published, which collected all the punitive measures applied to violators.

The additions to the Customs Regulations of 1857 were more detailed. They clarified many positions. A section on the return of goods was introduced into the charter. The reward for denunciation of smuggling also increased - now these persons could receive a third of the amount from the sale of confiscated goods. The charter regulated the rights to transport personal belongings of passengers.

The rights and responsibilities of customs officials were significantly expanded in the section of the Customs Charter devoted to European trade. District heads were given broad rights. They were entrusted with maintaining order at the auction and ensuring exemplary behavior of customs officials. They were obliged to ensure that the border was guarded correctly and reliably at all points. For failure to comply with customs regulations, all customs officers could be punished under the relevant article (a fine of 25 to 100 silver rubles).

A definition was given for smuggled goods: “Goods transported or carried past customs abroad or from abroad, as well as those not listed in the documents, brought to customs, are considered smuggled.”

For secret transportation and other violations of regulations, even with voluntary confession, the perpetrator was punished in accordance with the Penal Code of 1845. Punishment cases were conducted in the courts or at customs. The document discusses the conduct of proceedings on various aspects: “On denunciations and actions on them”, “On the detention of goods and their presentation at customs and police stations”, “On the production and resolution of confiscation cases, the announcement and enforcement of these decisions”,... The charter established the procedure for selling confiscated goods at public auction: 50% of the proceeds went to the Department of Foreign Trade, the other half was given to the seizers or detainees.

In the last quarter of the 19th century, legislation was improved. The customs charter of 1892 became more harmonious and clear, its provisions reflected the strategy of customs affairs. In connection with the equalization of the terms of trade in Central Russia and Western Siberia, duties and penalties for smuggling were unified. A number of articles of the Customs Charter of 1892 are devoted to customs protection at sea and in coastal waters. The definition of the customs lane was established by law. It began to be three nautical miles, where Russian and foreign ships could be inspected. The legislation provided for the use of weapons against ships that did not comply with customs requirements.

The Charter of 1892 included many articles previously contained in the Penal Code of 1845. According to Article 1542 of the Charter of 1892, the highest penalty for smuggling was a reference to hard labor for a term of 4 to 6 years. The legislation slightly changed the penalties for repeated arrests for smuggling, especially qualified ones. It also provided for the collection of a fine in specific amounts and without a specific amount. Other types of punishment were also used. In the Customs Charters of 1892 and 1904. additional punishments were provided for: “seizure” of duty and prohibited items when they were illegally transported across the border and the confiscation of vehicles used to transport smuggled goods in the border strip. If the owner was unable to pay the fine, it was replaced by arrest or prison.

Thus, rule-making activity in the Russian Empire by the beginning of the 19th century. strengthened, customs legislation was improved. Its use contributed to improving the quality of customs control and suppressing smuggling.