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Мазур Ченцов IMPLEMENTATION MEANS OF THE STATE CUSTOMS POLICY OF UKRAINE: LEGISLATION AND LEGAL DOCTRINE

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научная статья
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V.V. Chentsov, Prof., Doctor of Historical
Sciences, acting rector of the Ukrainian
Academy of Customs
A.V. Mazur, Cand. Sc. (Law), Assoc. Prof. of
the chair of Administrative and Customs Law
of the Ukrainian Academy of Customs
IMPLEMENTATION MEANS OF THE STATE CUSTOMS POLICY OF
UKRAINE: LEGISLATION AND LEGAL DOCTRINE
The state customs is considered in the light of the main codified customs act.
Thus, the subject of the study ranges the term that refers to one of the types of the
state policy, as well as its implementation means, provided for in the Article 5 of
the Customs Code of Ukraine of 2012.
Key words. Customs policy, customs affairs, implementation mechanism,
customs union, transferring order, legislation.
Introduction. Customs regulation upgrading is not always supported by
citizens and entities of foreign economic activity. Many of them felt positive
results from the hard work on improving mechanisms of the customs policy
formation and implementation.
At the same time, an established “habit” of some importers to minimize at
all hazards the losses at the customs border, as well as corruptness of both state
authorities and society do not allow to confirm the prevalent practice of civilized
dialogue of entities of foreign economic activity with customs authorities of
revenue and duties. That cannot but finally affect the characteristics of the national
customs policy.
Task statement. Basing on the legislative definition of the state customs
policy this is essential to join the discussion on contemporaneity and the nearest
future of its implementation methods. A legal aspect of implementation of the state
customs policy is emphasized. Besides, social, psycho-ethical and, certainly,
economic aspects are of great importance, - all of them deserve individual focused
researches.
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On the entry into force on July 1, 2012 an updated Customs Code of Ukraine
started the next stage of implementing the state customs policy as a means of
ensuring its economic interests. The customs policy implementation means are
presented in the codified act in some other execution. Within the framework of the
paper there is proposed an own vision of quality of the legal regulation of the
mentioned implementation means taking into account the research results of the
customs policy and the legal mechanism of its implementation.
Research results. In the opinion of Grebelnyk O.P. while determining the
customs policy there should be considered main approaches to its explanation,
such as: authoritative and legal, organizational and institutional, economic and
psycho-ethical. To achieve the investigation we will focus on the first two
approaches. Thus, as a preliminary there are several theses on the state policy. On
the basis of current views on the theory of state and law Kormych B.A. justly
marks the state policy to be that criterion defining the state activity in one sphere or
another. This activity is formalized in specific legal provisions and implemented
during the state authorities activity.
The Article 5 of the newly adopted Customs Code of Ukraine contains “the
state customs policy” definition (instead of “the state policy in the area of the state
customs affairs” until July 4, 2013): it is “a system of principles and directions of
the state activity in protecting the customs interests and ensuring the customs
security of Ukraine, regulating the foreign trade, protecting the domestic market,
developing the economy of Ukraine and its integration to the world economy”.
There is one of the most fundamental customs and legal concepts not only in
the revised version of the Customs Code of Ukraine. From this law there were
excluded such state customs policy implementation means, as: 1) tariff and nontariff regulation mechanisms of foreign economic activity; 2) participation in
customs unions, free trade zones and international customs agreements
(conventions); 3) establishment of procedures for transferring goods across the
customs border of Ukraine and carrying out hereto related customs control; 4) the
legislation of Ukraine on the state customs affairs.
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Appropriate comprehension of those concepts required a reader to determine
the concepts a law-maker mastered, such as: a tariff regulation, a non-tariff
regulation, a customs union, a free trade zone, an international agreement
(convention), a procedure for transferring goods across the customs border, the
customs control, the legislation of Ukraine on the state customs affairs.
As our examples we can take and make a distinction between tariff and nontariff regulations of foreign economic activity regarding their correlation with the
Customs tariff of Ukraine, as well as “a free trade zone” term means a type of
international integration whereby member countries abolish customs duties and
taxes, as also qualitative restrictions in mutual trade according to an international
agreement. Thus, some of the named terms are included in the Customs Code of
Ukraine, but some of them are excluded.
As we can see, the customs policy concept is presented indicating an
alternative incidence – protecting the customs interests and ensuring the customs
security of Ukraine instead of the customs affairs area. There are excluded
“targets” and “functions” terms, as also “the state budget replenishment” as one of
the customs policy targets. Owing to that the fiscal component of such policy is
apparently here to stay.
According to the Article 6 of the Customs Code of Ukraine the customs
interests of Ukraine are the national interests of Ukraine, whereby their ensuring
and realization are achieved by carrying out customs procedures; the customs
security is a level of safety of the customs interests of Ukraine. We think that the
rest of the terms are self-explanatory.
It is worthy of note that in view of the customs policy focus on the
protection of the national customs interests and the state economic security only a
complex performance of imposed tasks on the customs authorities of revenue and
duties can insure implementing the customs policy and effective customs affairs
execution [1].
The customs policy being a component of the state policy is implemented
during the activities of all institutes of public power of a certain state. These
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institutes include the authorities of all government branches – legislative,
executive, judicial and local government authorities, resolved some problems
within the framework of their activities. In details the subject structure of the
customs policy institutional mechanism is defined by the Law of Ukraine “On
foreign economic activity” (the Articles 9 and 10). Any list of customs policy
subjects cannot be exhaustive. Many of the state as well as non-state institutions
enable to meet any challenges concerning the customs policy formation and
implementation.
For some period of time the Ministry of Finance of Ukraine has been the
main state authority in the system of central authorities of the executive branch,
aimed at formation and implementation of the state financial, budgetary, tax,
customs policies, as well as the state financial control, treasury budgeting
supporting and accounting areas (paragraph 1 of the Ministry of Finance of
Ukraine Provision adopted by the Decree of the President of Ukraine No. 446 of
April 8, 2011).
From the date of reforming the customs and revenue services of Ukraine and
according to the Decree of the President of Ukraine No. 141/2013 of March 18,
2013 the Ministry of Finance of Ukraine has been divested of authority to
administer taxes, duties, customs payments and implement customs and tax
policies. These functions have been undertaken by the newly created Ministry of
Revenue and Duties of Ukraine.
The state highest legislative authority (the Verkhovna rada of Ukraine)
comprises a specialized collegial body – The Finance, Banking Activity, Tax and
Customs Policies Committee. Being a body of the Parliament the Committee is
formed from the people’s deputies of Ukraine for the purpose of law-drafting
activities at customs regulation, preparation and preliminary consideration of
customs issues, as also taking supervisory responsibilities.
However, the main subject of the customs policy implementation is a system
of customs authorities of revenue and duties with its “core” represented by the
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Ministry of Revenue and Duties of Ukraine. This Ministry’s Provision is adopted
by the Decree of the President of Ukraine No. 141/2013 of March 18, 2013.
The creation of this Ministry allows to make a conclusion that in the state
customs governance in our country there is a transition from the management by
results to the process approach using corporatism and re-engineering principles
[2, p. 419]. This governance model is characterized by a rejection of the functional
approach to the upgrading process and a transition to the process approach
included an analysis and restructuring business processes proceeded at customs;
however, the organizational structure, governance and technologies are formed
with a focus on business processes [2, p. 419].
Now therefore, we have a somewhat different customs authorities system,
which is “the main guardian of the customs policy in the international trade in
commodities”, as Czyżowicz Wes. justly remarks [3].
Despite the subjects the customs policy mechanism includes the main means
of its implementation, as: legal norms, customs service and customs activity, as
Kormych B.A. rightly argues. The customs activity forms are customs clearance,
customs payment exaction, keeping customs statistics, counteracting violations of
customs legislation, international cooperation with customs and other authorities
etc.
The judicial authorities surely play a significant role in the customs policy
implementation, especially in the context of safeguards for the rights and
legitimate interests of private and legal persons – the subjects of the customs and
legal relations. In particular, according to the Article 55 of the Constitution of
Ukraine provided a leave to appeal in a court against decisions, actions or failure to
act by the state authorities, local government authorities, public and judicial
officials. After using all national measures of legal protection it is very importance
to exercise the right provided in this paper to defend own rights and freedom in the
international judicial agencies or international organizations on the assumption of
the Ukraine’s membership in them.
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The national security policy (and therefore the customs one) is based on the
priority of the national interests and the threats to the national security of Ukraine
and carried out implementing relevant doctrines, strategies, concepts and
programs at the national customs security according to the current legislation. As
an example it is worth mentioning the Development Strategy of the Ministry of
Revenue and Duties of Ukraine. This Strategy was elaborated in conjunction with
consultants of the PricewaterhouseCoopers international auditing company and
received favourable reviews from the World Customs Organization [5].
So far, the Strategic Framework for Customs Cooperation can exemplify the
“strategies”. What is meant here is that Ukraine incurred obligations to have its
legislation met the EU standards at customs policy.
Let us consider in brief such implementation means of the customs policy
that turned legislative practice into theory.
1. Mechanisms of tariff and non-tariff regulations of foreign economic
activity. The customs policy is implemented by the mechanism of tariff regulation
of foreign economic activity. This mechanism includes the Customs Tariff of
Ukraine tools, the customs payment assessment methodology, the terms of tariff
exemption (preferences).
It is worth adding that in economic science there is proved a thesis
concerning illegality of identification of the customs and tariff policies, as in the
course of implementing the state common economic strategy the customs policy
functions are wider than the tariff policy ones, being a mechanism of implementing
customs policy, by definition.
Non-tariff regulation of the foreign economic activity is implemented using
proper measures provided by current legislation. According to the Paragraph 13 of
the Article 4 of the Customs Code of Ukraine non-tariff measures of foreign
economic activity - are not connected with applying duties to the goods transferring
across the customs border of Ukraine, established by the prohibition and/or
restriction law and focused on: a) the protection of domestic market, public order
and security, social morality; b) the protection of human and animal health and
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life; c) the environmental protection; d) the protection of rights of consumers of
goods imported to Ukraine; e) the protection of the national cultural and historical
heritage.
The World Trade Organization prioritizes the application of the foreign
economic activity tariff measures as more transparent and impartial in comparison
with non-tariff ones. Though, the complete forbearance of the last ones is not
expected, in particular, in the period of the world economic crisis.
2. Participation in customs unions, free trade zones and international
agreements (conventions) on the customs issues. At present Ukraine as a state is
not involved in any customs union. However, despite the refusal of the government
of Ukraine to ratify the EU Association Agreements the Ukraine’s customs
legislation harmonization of the mentioned Agreement requirements still remains a
topical issue (more to consider: Mazur A., 2013, Customs aspects of the EU
Association Agreement, Bulletin of the Ukrainian Academy of Customs,
nr. 2/2013).
Nevertheless, there was signed a series of international agreements
(conventions) on customs issues. The so-called Kyoto Convention plays here a key
role. In due time Professor Sandrovs’kyi K.K. aptly called it “the Constitution of
interstate foreign trade”.
3. Establishing a procedure for transferring goods across the customs
border of Ukraine and their customs control. Establishing a procedure for crossborder goods transferring in itself – is the customs regulation resulted in the
customs rules creation. The earlier established procedures and terms for
transferring goods across the customs border of Ukraine, their customs control and
customs clearance, the application of mechanisms of the foreign economic activity
tariff and non-tariff regulations, the customs payment exemption, keeping customs
statistics, the customs information exchange, maintaining the Ukrainian
Commodity Classification for Foreign Economic Activity, in obedience to the law
execution of the state control of non-food products by their exporting to the
customs territory of Ukraine, contraband prevention and counteracting,
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counteracting violations of customs rules, organizing and securing the customs
activities and other measures, focused on implementing the state customs policy,
represent the state customs affairs.
4. The legislation of Ukraine on the state customs affairs. The legislation
of Ukraine on customs affairs consists of the Constitution of Ukraine, the Customs
Code of Ukraine, other acts of Ukraine regulated the issues of the Article 7 of the
Customs Code of Ukraine, the international agreements of Ukraine ratified by the
Verkhovna Rada of Ukraine, as well as the regulatory acts based on the Customs
Code of Ukraine.
The customs payments exaction relations are regulated by the Customs Code
of Ukraine, the Tax Code of Ukraine and other acts of Ukraine on tax liabilities. If
an international agreement of Ukraine consented by the Verkhovna Rada of
Ukraine prescribes other rules than that provided by the Customs Code of Ukraine
and other acts of Ukraine, in that case there are applied rules of an international
agreement of Ukraine.
Conclusions. The customs policy is a type of the state policy, and its main
functional task is ensuring the protection of the national interests and national
security of Ukraine in political, economic, social, environmental and other areas.
The policy is based on some conceptual frameworks (standard national interests
and related aspects of the national security policy) and carried out by implementing
relevant doctrines, strategies, concepts and programs in various areas of the state
activity. Conducting the state policy the main paradigm should be the national
customs interests and the national customs security concepts. In spite of excepting
from the Article 5 of the Customs Code of Ukraine a list of specific
implementation means of the customs policy, they, like others remained outside
this research, require their practical application and continual improvement by
efforts of all government branches authorities within their jurisdiction and
competence.
References
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1.
Naumenko V.P., Pashko P.V., Russkov V.A. Customs regulation of
foreign economic activity of Ukraine. - Kyiv, 2004. - 403 p.
2.
Chentsov V.V. The state customs management mechanisms:
monograph. – Dnipropetrovs’k: Ukrainian Academy of Customs, 2012. – 492 p.
3.
polityka
Czyżowicz W. Polityka i prawo celne Unii Europejskiej – moduł:
celna
–
[Online].
Protokół
dostępu::
http://akson.sgh.waw.pl/~wczyzo/Materials/polityka_celna/polityka_celna_1.ppt
4.
Kormych B.A. State and legal mechanism of the customs policy of
Ukraine: monograph. – Odesa, 2000. - 182 p.
5.
The Cabinet of Ministers of Ukraine approved a five-year
Development Strategy of the Ministry of Revenue and Duties of Ukraine: a
message from the Ministry’s media office of October 24, 2013. – [Online].
http://minrd.gov.ua/media-tsentr/novini/116870.html
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