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  • Interpretation
  • No.495
  • Date
  • 1999/11/18
  • Issue
    • Is Article 31-1 of the Customs Smuggling Control Act unconstitutional by providing that, where the Customs finds that the goods imported or transported for transshipment to other domestic ports by vessels, aircraft, vehicles or other means of transportation are inconsistent with those stated in the hatch list, manifest, transshipment manifest, or carriage contract and documents, such goods shall be confiscated, unless it is evidenced that shipment has been made by mistake?
  • Holding
    •        As expressly provided in Articles 1 and 3 of the Customs Smuggling Control Act (hereinafter the “Act”), any person who imports/exports goods into/out of the ROC without filing declaration with the Customs, in an attempt to avoid inspection, evade customs duty, or avoid control, shall have his/her goods subject to inspection and seizure by the Customs. Article 31-1 of the Act provides: “Where the Customs finds that the goods imported or transported for transshipment to other domestic ports by vessels, aircraft, vehicles or other means of transportation are inconsistent with those stated in the hatch list, manifest, transshipment manifest, or carriage contracts and documents, such goods shall be confiscated, unless it is evidenced that shipment has been made by mistake.”The said provision imposes upon importers and exporters the obligations to make true statements and declarations in the hatch list, manifest, transshipment manifest, or carriage contracts and documents in accordance with the general practices and procedures of international trade and navigation. Goods proven to be shipped by mistake are exempt from confiscation. The condition of liability does not exclude the application of this Yuan Interpretation No. 275, is necessary for enhancing public interests, and does not contradict Article 23 of the Constitution.
  • Reasoning
    •        The Customs is responsible for inspection and seizure with respect to the smuggling of goods for import or export. According to Articles 1 and 3 of the Act, the term “smuggling goods for import or export” refers to the transportation of goods into or out of the ROC without filing of declaration with the Customs in an attempt to avoid inspection, evade customs duty, or avoid control. The legislators shall, taking into consideration the international trade practice, the operation process of the Customs and its implementation technique, determine how the Customs should conduct inspections and what measures should be taken to prevent smuggling. This is a matter for legislative decision. With respect to the people’s act subject to administrative penalty due to failure to perform obligations under the law, if the law does not specifically require, the penalty is not necessarily conditioned on willfulness, but fault is still a requirement for the liability. However, where an act is subject to administrative penalty for the mere fact of violating the prohibitive provision of law or obligation of act rather than conditioned on the occurrence of damage or hazard, it is presumed that fault is involved. If the wrongdoer fails to prove his/her innocence with evidence, he/she shall be punished. This has been interpreted per this Yuan Interpretation No. 275. Article 31-1 of the Act provides: “Where the Customs finds that the goods imported or transported for transshipment to other domestic ports by vessels, aircraft, vehicles or other means of transportation are inconsistent with those stated in the hatch list, manifest, transshipment manifest, or carriage contracts and documents, such goods shall be confiscated, unless it is evidenced that shipment has been made by mistake.”Under normal international trade circumstances, exporters are obliged to deliver accurate documents for carriers to fill out, and importers should demand shippers to ship goods as specified in contracts and documents to avoid violating the laws of the country of importation due to discrepancies between imports and the carriage contracts and documents. The said provision of law imposes upon importers and exporters the obligations to make true statements and declarations in the hatch list, manifest, transshipment manifest, or carriage contracts and documents in accordance with the general practices and procedures of international trade and navigation. Goods proven to be shipped by mistake are exempt from confiscation. The condition of liability does not exclude the application of this Yuan Interpretation No. 275, is necessary for enhancing public interests, and does not contradict Article 23 of the Constitution. 
      
    • *Translated by Dr. C.Y. Huang of Tsar & Tsai Law Firm.
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