Unclear regulations leading to overlapping of authority between Border and Customs

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The Customs Law stipulates: Vietnam Customs has duty to inspect and supervise goods and means of transport. Photo: T. Binh

Studying the draft, the Customs agency realized that the draft Border Law had many unclear regulations and were overlapping with the Customs’ authority.

Clause 4, article 15 of the draft stipulates that the Border Guardhas duty to "control immigration at border gates managed by the Ministry of Defense"; clause 2, article 16 of the draft stipulates that the Border Guards has right "to inspect, control and handle vehicles with signs of law violations in border areas and border gates"; and article 12 of the draft prescribes that the Border Guard has duty to manage and protectnational borders; control entry and exit, import and export at border gates”.

Regarding the above contents, the Ministry of Finance issued Document No. 148 / BTC-VI of January 4, 2019 and Document 11493 / BTC-VI of September 27, 2019, when giving its comments to this draft. In these documents, the Ministry of Finance said that the draft regulation is overlapping with the Customs duty on controlling means of transport in the customs operation areas under the Customs Law and guiding documents.

In report No. 266 / BCTĐ-BTP dated December 19, 2019 of the Ministry of Justice when considering the legitimacy and the consistency of the draft Law with the legal system also stated: the current legal system has many legal normativedocuments that gives specific regulations and border activities-related regulations such as the National Border Law and the Customs Law, etc. The draft should be carefully reviewed to ensure consistency and synchronization with the relevant regulations.

Point 6.1, Chapter 6 of the International Convention on the simplification and harmonization of Customs Procedures 1999 (Vietnam is a party to the Convention) provides for "all goods, including means of transport entering or exiting from customs territory, regardless of whether or not subject to customs duties and other taxes, are subject to Customs inspection.”

The management, inspection and control of means of transport on entry and exit are clearly assigned to the customs authority in Article 12 of the 2014 Customs Law. Accordingly, the customs authority has the dutyto inspect and supervisegoods and means of transport. Moreover, the 2014 Customs Law provides for a series of contents on procedures, inspections and supervision of means of transport such as Article 16, Article 17, Article 18, Article 19, Article 21, Article 22 and Article 23, Article 25, Article 35, Article 38, Article 40, Article 56, Article 57, Article 58, Article 66, Article 67, Article 68, Article 69 and Article 70.

Clause 1, article 33 of Decree No. 08/2015 / ND-CP (amended and supplemented in Decree 59/2018 / ND-CP) further affirms, “The customs authority takes the lead and regulates inspection of exported, imported, goods in transit and means of transport on exit, entry and in transit of state management agencies at the border gates."

Regarding the content of the Border Guards' authority over control of exit and entry vehicles and imported and exported goods, the Ministry of Defense’s Circular No. 09/2016 / TT-BQP detailing and guiding the implementation of a number of articles of Decree No. 112/2014 / ND-CP dated November 21, 2014 on the management of land border gates has regulations contrary to the Government's documents and adds administrative procedures. Therefore, the Government issued Resolution No. 19-2017 / NQ-CP of February 6, 2017, providing for the implementation of solutions and tasks to improve national competitiveness and improve the business environment in 2017 with an orientation to 2020, which directed the Ministry of Defense to “abolish the regulation that the Border Guard had duty to inspect and supervise records and imported and exported goods in article 12 of Circular No. 9/2016 / TT-BQP, ensuring consistency with the Customs Law; at the same time, studying and proposing the amendment of Article 9 of the Ordinance on Border Guard."

Therefore, in order to ensure transparency, clarity and consistency with the current Customs Law, the drafting agency is proposed to amend the above provisions as follows:

Regarding the provisions of clause 4, article 15 of the draft Law, the duty of the Border Guard is amended to "Control people on entry and exit at border gates managed by the Ministry of Defense".

Accordingly, it is clearly stated that the subjects of control are specified as people on exit and entry but are not as general as the draft, easily making overlaps in the control authority with the customs authority.

Similarly, the provision of clause 2, article 16 of the draft Law stipulates the powers of the Border Guard "to inspect, control and handle vehicles with signs of law violations in border areas outside the customs operation areas”.

Regarding the provision of article 12 of the draft Law stipulating "management and protection of national borders; control of people on exit and entry”(abolishing import and export).

For controlling means and transport and imported and exported goods, when detecting signs of law violation, borderguard agencies shall coordinate with border-gate customs offices in inspecting exit and entry vehicles and export-import goods. This is also consistent with the practice of administrative reform requirements and creates favorable conditions for people.

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Because the customs office is a state management agency that carries out customs procedures, inspects, supervises and controls imported and exported goods and means of transport on entry and exit, it is not necessary to repeat the procedures or inspection at the Border Guard agencies.