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ORGANIZATIONAL-STRUCTURAL CONSTRUCTION OF CUSTOMS BODIES

Does not cause doubts, that according to item 8 TK subjects of management in sphere of customs business are the customs bodies of Russia constituting uniform system which in a general view can be defined as the set of independent links characterised by the uniform purposes and problems caused by a functional generality.

Thus each body according to the place and position in the general customs system plays a part, carrying out bolshy or smaller volume of the functions assigned by the state on customs bodies as a whole.

Mutual relations in system of customs bodies are based on principles: centralisation and decentralisation. The first is expressed in strict hierarchical subordination and the liability for control of subordinate bodies higher. The second appears available at each body of system of strictly certain competence on realisation of customs business in territory subordinated to it and a combination of the uniform centralised management to the initiative and responsibility of subordinate bodies for performance of the functions assigned to them.

According to the code, in uniform system of customs bodies enter: the State customs committee of the Russian Federation, Regional Customs of the State Customs Committee of the Russian Federation, customs, customs posts.

Quantitative changes of links of system on years probably to present as follows: if to the MOUTH in 1991 was only 2, in 1995г. - 15, in 1998 and in 2000 of - 20, and in 20021 - 11 [80] [81] [82]. The quantity of customs with 1991 for 2000 has increased: 1991 - 81; 1995 - 144; 1998 - 150; 2000 - 154. In 2002 there is a reduction - 141. At the same time concerning customs posts the tendency of constant increase is traced. If in their 1991 was 101, in 1995 already 503, in 1998 - 508, in 2000 - 511, and in 2002 already 670. And this figure not definitive (the Appendix 5 See).

The State Customs Committee in customs system has a special role of operating, konso -

L

In the lead and organizujushchego the body which is carrying out of a problem and function of specific character. It is the central body in realisation of positions TK, and also practical realisation of customs activity in all territory of Russia.

Activity and placing to the MOUTH and customs on territory of Russia are influenced by such factors as: administrative territorial division; economic division into districts; the trading-political moments; concentration of participants of foreign trade activities; interests of local governments; specificity of activity of concrete customs body; presence of the major streams of moving of cargoes and a direction of routes; conditions of the Federal contract with national republics; division into 7 federal districts of territory of Russia (the Decree of the President from May, 13th, 2000 №849!) etc.

To execute decrees of the President of the Russian Federation from 13. 05. 2000 №849 and from 17. 05. 2000 №867, with a view of control system perfection by customs bodies, increases of level of their interaction with plenipotentiaries of the President of the Russian Federation in federal districts, law-enforcement and other federal enforcement authorities of 13 Regional Customs are reorganised in 7 which regions of activity correspond to territories of federal districts.

This norm has found the acknowledgement in position about the MOUTH [83 [84].

At creation of customs by a territorially-administrative principle experts proceeded first of all from structure of the foreign trade turnover of each region.

Except the listed factors, influence is rendered by main principles and problems of an arrangement of customs bodies.

One more of features of system is that fact, that in system of customs bodies of Russia there is also a number of "specialised" customs bodies. The criterion of specialisation consists, first of all, that they are created for the organisation and realisation of a certain direction of activity.

The following feature is that activity region such [85] bodies is all territory of the Russian Federation, instead of its separately taken region. So, for example, formed in 1994 on the basis of a separate post of Sheremetevsky customs the Chkalovsky customs specialises on customs registration and the customs control of military-transport aircraft in the Moscow area. Power customs, a legal status

With which it is defined by corresponding position about ней1, specialises on the customs control over moving of energy carriers through customs border of Russia. In system of bodies the Central excise customs specialising on customs registration and the control podaktsiznyh of the goods is created also. Practice is that, that for today creation of the customs specialising on registration and the control over moving through customs border of some other specific goods (for example, diamonds and precious metals, radioak - tivnyh materials, wine-vodka of products etc. became rather actual.).

At the same time, depending on the size of the listed customs payments (item HO TK and paragraph 2.1 of scientific work see) in system exists kategorirovanie customs bodies [86 [87] [88], and depending on a certain category financing and definition of wages of employees is carried out. As financing depends on a category, it would be desirable to notice, that by quantity of customs payments which are collected by this or that customs body, possibly, incorrectly, to appropriate to it this or that category, since. The income speaks specialisation of customs body. Existing specialisation on registration of a certain kind of the goods (from all territory of Russia) allows to collect the huge sums of customs payments for oil, gas or the electric power moved through customs border of the Russian Federation, but not to all bodies, and what are defined

Orders of the State Customs Committee of Russia. Accordingly volumes of the certain commodity class from all territory of the country (for customs registration and payment of payments) are enormous. A basis of such big gathering is that the customs duties on these kinds of the goods are great. Considering bolshy gathering of customs payments of such customs bodies, to it appropriate the highest category. On an example of the Voronezh customs (originally - customs 1 - oh categories, and after the beginning of active application of specialisation in customs registration - customs of the second category) it is possible to establish the unreasoned approach to kategorirovaniju (with all following negative consequences).

Coming back to features of an arrangement of customs bodies, it is necessary to notice, that region of activity of a customs post (further — the post) is defined also the State Customs Committee of Russia. At the same time, the region of activity of a post is a part of region of activity of customs (the example of the Voronezh customs - is see by the Appendix 6).

Further, according to the author, there will be timely and necessary a carrying out of the comparative analysis 2-uh the Positions approved by the Order of the State Customs Committee from 10.10.2002 to ³1082 customs and a customs post.

The first, that it is necessary to note once again, it is an accurate position: the customs (as well as the MOUTH) is law enforcement body of the Russian Federation. Provides within the competence execution of the legislation on administrative violations; is the legal body, has independent balance, the press with the image of the State Emblem of the Russian Federation and with the name, current accounts under the federal budget in bodies of federal exchequer, in banks and other credit organisations; possesses the right to lead economic activities.

Concerning a customs post in position following norms contain: 1) the post carries out the activity under the general management of the State Customs Committee, the MOUTH and a direct management of customs; 2) the region actively - sti a post defines the State Customs Committee. The region of activity of a post is a part of region of activity of customs; 3) creation, reorganisation and post liquidation carries out the State Customs Committee; 4) the post can be, (words «can be» testify to ambiguity) is formed also ("also" not only ambiguity confirms a word, but also once again specifies in that fact, that Position about a customs post is developed and approved for a post without the status of the legal person) as the legal body by the State Customs Committee decision; 5) only the post being the legal body has the press with the image of the State Emblem of the Russian Federation and with the name, independent balance, accounts in bodies of federal exchequer, banks and other credit organisations (but opens them nevertheless only with the permission of higher customs body; 6) only the chief of the post which is the legal body, signs on a basis and in execution of legal acts of higher customs bodies orders, orders and other legal acts of not standard character; applies concerning officials of a post of a measure of encouragement and disciplinary influence.

The spent comparison allows us at given stage to analyse the maintenance of item 23.8 KoAP (items 4. Item 2. - to consider cases about the administrative violations provided by item 16 KoAP (the administrative violations made by physical persons, on behalf of customs bodies chiefs of customs posts have the right). It is necessary to establish the fact, that customs posts and in operating TK, and in the Code about administrative violations (and in the project of the Customs code too) continue to be considered by the legislator as independent customs bodies.

The legal encyclopaedia contains following definition of body is: 1) the state or public structure possessing organizational unity, own competence and a special purpose (in our case — executive customs bodies of the state). In

Constitutional law as the state body understand collective of the citizens allocated with state-imperious powers, authorised by the state on realisation of its problems and functions and operating in the order established by the state.

According to item 1.1. General provisions on a customs post of the Russian Federation (the approved Order of the State Customs Committee of Russia from 10.01.1996г. №12) ' the customs post was included into uniform system and was law enforcement body of the Russian Federation (item 1.7. Positions). According to cancelled item 3.18 (Position of 1996) the post led manufacture on affairs about NTP and carried out their consideration within the competence (i.e. in case of impeachment of the person). But under the general rule (developed long-term практики2) any customs post is not the legal body. And only according to the decision of the State Customs Committee it can be allocated by the status of the legal person.

New position of 2002 about a customs post accurately fixs, that only the post which is the legal body protects own rights, property and others in courts of justice by consideration of complaints on the affairs arising from jural relations under administrative law.

From the Letter of the State Customs Committee of Russia from 08.07.02 №05-20/27098 does not follow, that there are customs posts (from 670 in territory of the Russian Federation) which have the rights and duties of the legal person. Remains not clear: on what basis to chiefs of all customs posts (without what or specifications: being or not being the legal body) grants the right to consider cases about administrative violations? In practice cases of the reference with complaints to decisions of the chief [89] repeatedly took place

Post. It is natural, that in court of cassation of court as the respondent the customs which structure includes a customs post (as structural division) acted. And all apportionment of liability (in its forms) laid down on customs, since. It is the legal body competent to bear responsibility.

Causes concern and a categoriality of the legislator concerning the chief of a customs post and its right of application of administrative punishment. If to the head of federal enforcement authority (i.e. to the Chairman of the State Customs Committee), and also to its subordinate bodies (to the MOUTH and customs), headed by chiefs to the MOUTH and chiefs of customs, it is accorded a right legal investigations - to its assistants (in absence of the head) concerning chiefs of customs posts, probably to assume, that their rights are in this respect limited, since. The rights of the deputy chief of a post it is mentioned nothing. The impression is created, that the right to rest, recovery of health and the decision of office questions in higher customs bodies at chiefs of posts is not present, since according to item 23.8. KoAP it is not established, that the assistant or the authorised person, has the right to a legal investigation about NTP concerning physical persons (i.e. The chief of a post cannot delegate this right). Possibly, will not be revelation the information, that considerable quantity of customs posts (and all not being legal bodies) are on external customs borders of the Russian Federation and in considerable removal from the higher customs body, i.e. from customs. For example, in region of activity of the Voronezh customs the boundary Kantemirovsky customs post is on distance over 250 km, and two autotransitions (boundary) - in several tens kilometres from the post. What to do to physical persons in case of fulfilment NTP and absence of the chief of a post for a legal investigation? - Only one - to address in customs to a management!

Possibly, timely will notice also, that according to item 26

Positions about a post, a post (it is not specified: being the legal body or not) initiates affairs about administrative violations; spends administrative investigation; carries out disposal of legal proceeding about the administrative violations made by physical persons. And in section «Right of a customs post» it is fixed, that the post has the right to make of the decision on affairs on the administrative violations made by physical persons.

On the basis of the above-stated, we observe the contradiction of the maintenance of item 8 TK (which lists links of customs system: the State Customs Committee, the MOUTH, customs and customs posts — as independent customs bodies) and item 23.8 KoAP (which defines what to consider cases about administrative violations on behalf of customs bodies, have the right... Chiefs of customs posts), on the one hand, and Positions about a customs post (not so not containing norm, that the customs post is law enforcement body, but in some cases specifying, that the post can be the legal body), on the other hand.

According to the author customs posts cannot be considered as an independent link of system of customs bodies and the more so cannot be considered as law-enforcement customs bodies. These are divisions of customs, along with such services of customs, as legal service, a department of exchange control or a department of customs protection (the Appendix 6 and 6 see "and").

Being based on the given judgement, the author suggests to exclude customs posts (item 8 TK) from structure of system of customs bodies.

If to consider, that from eight chiefs of customs posts (without the status of the legal person) subordinates to the Voronezh customs now, only one chief has the juridical education (a similar situation and in Lipetsk, Kursk, Tambov and other customs TSTU) according to the author, application of administrative punishment for NTP is not always possible on a customs post. It is more expedient to give spe - to the tsialistam-lawyers having experience of consideration of disputes, the right of consideration and definition full and qualified dokazatelnosti perfect administrative violation. Is better it can make in vessels. A question - in what?

According to item 23.1 KoAP of business about administrative violations in the field of customs business (NTP) are considered by judges of regional vessels.

In Russia the mechanism of administrative legal proceedings according to ch is gradually formed. 2 items 118 of the Constitution of the Russian Federation. It is prepared FKZ «About federal administrative courts in the Russian Federation» which is approved in the first reading.

Participating in bill discussion in October - December 2000г., Tihomirov J.A. has brought in Committee on the state building State blow - stvennoj the offer Dumas under the project of the federal constitutional law «About federal administrative courts in the Russian Federation». It notes expediency of preamble FKZ of the following maintenance: «the Purpose of the federal constitutional law is consolidation of legality and maintenance of the rights of citizens in sphere of the state and municipal management on the basis of rules of administrative legal proceedings». Administrative court definition is offered to them, is the federal specialised court resolving public disputes in sphere of the state both municipal management and considering the complaints of citizens on actions and the decisions of enforcement authorities, local governments and officials.

Tikhomirov considers, and the author is inclined with it to agree, that it is expedient to carry to jurisdiction of administrative courts mainly disputes in sphere of functioning of the executive authority. These are certificates, actions, disputes on the competence and other disputes, and also complaints of citizens. In item 1 to remove the reservation on affairs on administrative violations. Is justified to define more particularly jurisdiction of each link of system of administrative courts »1.

Creation of administrative courts specialising, including, on consideration of administrative violations in sphere of customs business - would be the decision of an existing problem.

It is necessary to notice, that infrastructure development is the integral attribute of uniform system of the customs bodies, one of the major links of maintenance of its activity on realisation of customs business. If to list characteristic lines and properties of this infrastructure it is necessary to note neizolirovannost it from all system of an infrastructure of national economy. For example, it is difficult to present a customs infrastructure without communication with work of means of communication, various kinds of highways and communications as in a strip adjoining to border of Russia, and in the country [90 [91].

At the same time in «Bases of customs business» (authors With. M.Bekov, N. M.Blinov, P.V.Dzjubenko, V.P.Tarasov) is underlined, that the customs system is a component, an element institutsionalnoj infrastructures (a complex of branches and the fields of activity which are carrying out regulation of economy, supporting optimum macroeconomic proportions of development of the national economy, rendering services scientific, administrative, pravoohrannogo and protective character), and zna - chit serves the basic branch - foreign trade activities.

The customs infrastructure is regularly reformed. In the conditions of mutual relation market economy between customs and participants

Foreign trade activities considerably become complicated and develop. It demands essential reorganisation of all its establishments and development between the client and law enforcement body is not command - directive forms of management, and relations of partners equal in rights in the foreign trade activity. Thanks to this aspiration of mutual relation between them have got originally standard - economic character. Authorities began to found infratamozhennye the enterprises (the same customs warehouses and warehouses of time storage (further - SVH), customs terminals, duty free shops, customs brokers etc.), i.e. To transfer a part of the powers to participants of foreign trade activities. So, for example, in 2002 33 objects of a customs infrastructure for frontier arrangement have been put into operation. In 2002 is planned to enter 56 objects. Till 2010 according to the federal target program, «Frontier Russian Federation (2002-2010 of) »The State Customs Committee of Russia should construct 109 automobile check points. [92]

One of the vital issues - a delivery and licence withdrawal order on this or that activity in customs sphere. Today customs bodies grant licences on SVH, customs warehouses, duty free shops, and also licences etc. But delivery procedure leaves much to be desired by customs carriers.

During discussion of the project of the customs code the offer has been brought to deprive customs bodies of such powers and to generate a certain special body, for delivery of licences. However the offer has not found support. Really, what for to create new bureaucratic structure? Besides this idea contradicts the law «About licencing in the Russian Federation». In it it is clearly told, that licensing duties are assigned to those bodies which operate this or that branch. But nevertheless remains incompatible: the control over legality (legitimacy) of licensing by the body, which itself has granted the same licence.

The opinion of the author of dissertation is represented to more true, that the State Customs Committee and its subordinated bodies should not be engaged such pravoustanavlivajushchej in practice (delivery of licences) and at same to supervise performance published by them normative acts and rules.

Many censures are caused also by licence withdrawal system. Existing it is unduly rigid. Therefore developers of the code offer absolutely new formula. It is represented expedient to enter into the code the norm obliging customs at first to send to the infringer the instruction: in a current, for example, 20 days it should eliminate the revealed infringement. If it has not made it, action of the licence for three months stops. And only when it does not help - to make the decision on licence withdrawal.

Behind each given out licence there is an enterprise activity, sometimes very scale, especially if to mean processing modes. However, both owner SVH, and a customs carrier are the persons who have put up considerable money in the business. The system of instructions gives chance to correct an error and to work further, and the author of dissertation with the given scheme completely agrees.

As the establishments regulating foreign trade activities, bodies of customs system promote goods exchange processes. They render services on is information - to consulting questions, storage of the goods in warehouses, to support of cargoes on territory of Russia. Establishments of this system have possibility (as a result of confiscation or through a mode «refusal in favour of the state») to conclude dogovory via the infrastructure or state and other enterprises, establishments, the organisations on realisation of the goods.

Visually in customs infrastukture it is possible to illustrate activity on an example of the customs broker.

According to the Russian customs legislation activity of the customs broker is a kind of customs activity in which the legal body who created according to the legislation of the Russian Federation and has received the licence of the State Customs Committee of Russia on realisation of the corresponding kind деятельности1 can be engaged.

From this follows, that:

First, in activity as the customs broker the Russian legal body can be engaged only, than the Russian national customs legislation differs from foreign [93 [94];

Secondly, the organisation can be the customs broker only, than the customs legislation differs from exchange or from the legislation regulating trading navigation where the broker is considered as the physical person (in the customs legislation the broker - only the legal body);

Thirdly, not any organisation, but only only being the commercial organisation can be the customs broker, i.e. Pursuing as a main objective of the activity profit extraction (item 50 GK the Russian Federation). And the state enterprise by what the state or municipal enterprises created under the decision of the Government of the Russian Federation on the basis of property are understood, being in the federal property and transferred by this enterprise in an operational administration, is excluded from applicants in customs brokers. And it is vain!

Fourthly, activity as the customs broker is possible only after reception of the licence of the State Customs Committee of Russia on the employment right this kind of activity. Through licensing the state establishes a special legal regime of the beginning and activity realisation in customs sphere, defines its horizons, the liability for control and termination possibility on the special bases. Besides, licensing of the customs broker has konstituirujushchee value. Rendering of services of the customs broker without presence of the corresponding licence is considered illegal.

Fifthly, the customs broker in statutory cases carries out duties of the tax agent (item 24 HK the Russian Federation). The customs legislation provides, that by the contract of the customs broker with the principal duty putting on on payment of customs payments on the customs broker can be provided. If the person moving the goods and vehicles, independently carries out payment of customs payments the duty is assigned to the customs broker to carry out in the forms which are not contradicting the legislation of the Russian Federation, monitoring behind timeliness and completeness of this operation by the principal.

The essence of activity of the customs broker, according to the customs legislation, consists in performance from own name, but for the account and on the instructions of the principal, the intermediary operations necessary for customs registration (item 159 TK the Russian Federation). Relations of the customs broker and the principal are under construction on the basis of notarially certificated contract. The given contract is public (item 426 GK the Russian Federation).

The institute of the customs broker urged to act, on the one hand, as the person who will lead activity at own risk, showing thus necessary level of care and discretion, and with another - to act as a certain continuation of the juridical personality of customs bodies.

It is necessary to give to such subjects of a customs infrastructure, as the customs broker, a customs carrier etc. The status of the unitary enterprises. According to the federal act of the Russian Federation «About state and municipal authorities», the unitary enterprise the commercial organisation which has been not allocated with the property right to property, fixed for it the proprietor admits. In the form of the unitary enterprises the state and municipal enterprises can be created only. The property of the unitary enterprise belongs on the property right of the Russian Federation, to the subject of the Russian Federation or municipal union [95].

We have already noticed, that in history of Russia, there was otkupnaja a customs. So why it is impossible to address to historical experience, to improve it and to apply in Russia again - even through system of customs brokers, customs carriers, CBX etc.?

Is at a customs infrastructure and the interdepartmental appointment, i.e. Creation of necessary preconditions and conditions of functioning of the most customs system. For example, Main nauchnoinformatsionnyj computer centre (GNIVTS), entering into State Customs Committee structure, - the state enterprise operating on the basis of the charter about it, the customs committee approved by the Chairman.

Main objective GNIVTS - increase of an overall performance of customs bodies of Russia by creation, introduction and operation of the Uniform automated information system (EAIS) customs bodies, and also maintenance of its ability to live.

GNIVTS possesses corporate franchises, has independent balance, the settlement account, an official stamp with the name; operates on the basis of cost accounting and self-financing.

To carry to an infrastructure only that part of a network of establishments which carry out the subordinated auxiliary role in realisation of questions

Customs business, the decision of problems of functioning bodies, would be obviously incomplete, and as a matter of fact - one-sided, so, deformed. For this reason concept of a customs infrastructure, according to the author, probably to define as follows: it is a complex institutsionalnyh, the social structures having the status of the unitary enterprises, and activity kinds; means (systems) of the customs registration, all kinds and forms customs (within the competence - and currency) the control; examinations and communications; information systems; material base of the customs bodies providing conditions of customs regulation of foreign trade activities in whole and the activity of customs system in particular.

On the basis of the stated judgements, according to the author, it is expedient to suggest to include in customs system as 4th link the customs organisations on which establishment the permission (licensing) of the State Customs Committee is required (that constitutes a customs infrastructure), as now in system as its links do not enter, but are subordinated to committee:

- Laboratories which are created the State Customs Committee for carrying out of examinations and researches of the goods with a view of their registration or контроля1;

- Research establishments and educational institutions professional and an additional education (for example, customs Academy);

- Customs carriers;

- Computer centres, polygraphic, building-operational and other enterprises and the organisations, which activity promotes the decision of problems of customs bodies, etc.

Despite the heterogeneity, all of them are consolidated to one target sign - promote creation of a favorable economic situation in the country and render auxiliary activity to customs bodies in realisation of their functions.

Considering system of customs bodies as the enforcement authorities allocated with the certain competence, disclosing at least some aspects of practical activities of these bodies is obviously necessary, that the author and will try to carry out in the following chapter.

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A source: AGISHEVA ELENA NIKOLAEVNA. LEGAL And ORGANIZATIONAL ASPECTS of ADMINISTRATIVE ACTIVITY of CUSTOMS BODIES of the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2003

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