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§ 2. System and kinds of the administrative punishments appointed for fulfilment of customs offences.

Administrative punishment, being a measure of administrative responsibility, should correspond to character and degree of the social danger of an offence for which fulfilment it is appointed, and to consider both the person guilty, and all circumstances of fulfilment of administrative violation.

Thus, the legislative establishment and a regulation of several kinds of administrative punishments are necessary, each of which would conclude in itself(himself) certain volume of negative consequences, various on the character and influence degree on the offender so that appointment of concrete punishment as much as possible reached the purposes put before administrative punishment as a measure of administrative responsibility.

Proceeding from it item 3.2 KoAP the Russian Federation contains the list of punishments, various on the character, the maintenance and legal effects which come under to application by the authorised bodies and officials.

For fulfilment of administrative violations following administrative punishments can be established and be applied: the prevention; the administrative penalty; compensated taking of the tool of fulfilment or an administrative violation subject; confiscation of the tool of fulfilment or an administrative violation subject; deprivation of the special right given to the physical person; administrative arrest; administrative exclusion for limits of the Russian Federation of the foreign subject or the stateless person; disqualification.

So, the system of administrative punishments represents set of measures of administrative responsibility, and is characterised by following basic lines.

1) the System of the administrative punishments listed in item 3.2 KoAP the Russian Federation, is characterised by unity, close interrelation of the elements.

The unity of system of administrative punishments is expressed in a uniform basis of their legal regulation; the general character of elements of system - administrative punishments - as measures of administrative responsibility; their identical retaliatory essence [251], and also the uniform purposes and legal effects of application of administrative punishments.

2) the System of administrative punishments is the unique legislatively established list of administrative punishments that allows to provide uniform understanding and application of the given means the right - of protection [252].

^ In full conformity from item 1.1 KoAP the Russian Federation, on which legislation

About administrative violations consists from KoAP the Russian Federation and laws of subjects of the Russian Federation accepted according to it on administrative violations, the establishment of two kinds of punishments (the prevention and the administrative penalty) in the branch legislation or the legislation of subjects of the Russian Federation is supposed, and subjects of the Russian Federation actively use this right [253]. However the administrative punishments listed in items 3 - 8 ch.

1 items 3.2 KoAP the Russian Federation (compensated taking; confiscation; deprivation of the special right; administrative arrest; administrative exclusion; disqualification), are established only at federal level.

shch 3) the Punishments forming system, are located in the law in strict opre

delennom an order: from less severe to more severe; differently the law contains «a ladder of punishments» [254] which should be considered as a legislature of subjects of the Russian Federation, and pravoprimenitelnymi bodies.

Some researchers however deny such characteristic of system of administrative punishments, noticing, that on an arrangement of administrative punishments in system it is impossible to draw a conclusion concerning an estimation the legislator of weight of each of punishments in the ratio among themselves [255].

It is represented, that about hierarchy of administrative punishments though and it is conditional, however it is necessary to speak, as at construction of system of measures of administrative responsibility by the legislator it was considered not only the size of possible punishment (for example, the penalty sum be valid can below cost of a subject of confiscation of a subject of an offence), but also

• a direction of retaliatory influence, character of those rights and freedom which administrative punishment influences, and also degree of achievement of the purposes of punishment at application of this or that measure of responsibility. So, to the most severe punishments, certainly, it is necessary to carry administrative arrest which one of the most important individual rights of the person — the right to a freedom of movement consists in the maintenance of the infringer in the conditions of isolation from a society and limiting.

Concerning kinds of administrative punishments in the literature there was no common opinion, at their classification the most different criteria are used.

• So, the system of administrative punishments depending on compulsion of appointment of this or that kind of punishment means allocation among their list of the basic and additional.

The prevention, the administrative penalty, deprivation of the special right given to the physical person, administrative arrest and disqualification can be established and be applied only as the basic administrative punishments. Compensated taking and confiscation of the tool of fulfilment or an administrative violation subject, and also administra -

tivnoe exclusion for limits of the Russian Federation of the foreign subject or the stateless person can be established and be applied in quality as the basic, and additional administrative punishment. For one administrative violation the core or the basic and additional administrative punishment from the punishments specified in the sanction of applied article of Special part KoAP the Russian Federation or the law of the subject of the Russian Federation about administrative responsibility can be appointed.

Further, administrative punishments are differentiated by researchers depending on the subject of responsibility on administrative punishments, * applied to physical persons, and on the administrative punishments applied to legal bodies [256].

Concerning the legal person following administrative punishments can be applied only: 1) the prevention; 2) the administrative penalty; 3) compensated taking of the tool of fulfilment or an administrative violation subject; 4) confiscation of the tool of fulfilment or an administrative violation subject.

Also researchers mark distinction between kinds of punishments depending on the maintenance of retaliatory influence: morally-legal (prevention), property (the administrative penalty, vozmezdnoe SHCH withdrawal, a subject, subject confiscation), limiting personal liberties of physical persons (administrative arrest, administrative exclusion), organizational (deprivation of the special right given to the physical person, disqualification) [257].

By the same criterion other authors allocate punishments of moral character (prevention); monetary and forfeitures (the penalty, confiscation); the punishments turned on the person of the infringer (deprivation of the special right, administrative arrest, administrative vydvore -

є) [258 [259].

And, at last, administrative punishments can be classified on a circle of persons, their representatives to appoint, on administrative punishments:

- Appointed exclusively the judge (compensated taking of the tool of fulfilment or an administrative violation subject, confiscation of the tool of fulfilment or an administrative violation subject, deprivation of the special right, administrative arrest, administrative exclusion for

L/O

Limits of the Russian Federation of the foreign subject or the stateless person)

- Appointed the judge or other bodies (officials).

* Researchers allocate also some tendencies of development of system

Administrative punishments, basic of which certain dynamism of the list of kinds of punishments, an order of their establishment and the application, connected with changes in the Russian statehood [260] see expansion of application of administrative punishments judicially, and also.

Now sanctions of norms of chapter 16 KoAP the Russian Federation «Administrative violations in the field of customs business (infringement of customs rules)» provide imposing possibility on offenders of three kinds of administrative punishments: 1) the prevention; 2) the administrative penalty; 3) confiscation of the tool of fulfilment or a subject administrative g offences.

Let's consider the maintenance of the specified measures of administrative punishment.

The prevention is the measure of administrative punishment expressed in official censure of the physical or legal person. The prevention is taken out in writing. Last circumstance is extremely important, as the oral remark of the representative of the authorised body of the government will not entail legal consequences in the form of annual term during which the person is considered involved in administrative responsibility and consequently, it will not be considered as the aggravating circumstance at awarding punishment for other offence.

The administrative penalty. As there is a penalty as a punishment under criminal law kind the legislator has considered necessary to concretise the name of the penalty applied for administrative violation - administrative штраф270.

The administrative penalty is the fine and can you -

• razhatsja in size, multiple:

1) to the minimum wage rate (without regional factors), established by the federal act at the moment of the termination or administrative violation suppression (further - the minimum wage rate);

2) costs of a subject of administrative violation at the moment of the termination or administrative violation suppression;

3) the sum not paid and coming under to payment at the moment of the termination or suppression of administrative violation of taxes, gathering or the customs duties, or the sum of illegal currency transaction, or the sum of money resources or cost of the internal and external securities which have been written off and

• (or) enlisted with default of the established requirement about reservation, or the sum of the currency gain which has been not sold when due hereunder, or the sum of the money resources which have been not enlisted when due hereunder into the accounts in authorised banks, or the sum of the money resources which have been not returned when due hereunder to the Russian Federation, or the sum of not paid administrative penalty.

The size of the administrative penalty cannot be less the one tenth minimum wage rate.

The size of the administrative penalty imposed on citizens also it is estimated - [261 [262] go proceeding from the minimum wage rate, cannot exceed 25 minimum wage rates, on officials - 50 minimum wage rates, on legal bodies - 1000 minimum wage rates.

The administrative penalty for infringement of the customs legislation of the Russian Federation, imposed on officials and legal bodies, can be established with excess of the specified sizes, but cannot exceed for officials 200 minimum wage rates, for legal bodies — 5000 minimum wage rates.

The size of the administrative penalty estimated proceeding from cost of a subject of administrative violation, and also proceeding from the sum of not paid taxes, gathering or the customs duties, or the sum illegal * currency transaction, or the sum of money resources or cost of the internal and external securities written off and (or) enlisted with default of the established requirement about reservation, or the sum of the currency gain which has been not sold when due hereunder, or the sum of the money resources which have been not enlisted when due hereunder into the accounts in authorised banks, or the sum of the money resources which have been not returned when due hereunder in the Russian Federation, cannot exceed the triple size of cost of a subject of administrative violation or the corresponding sum or cost.

Thus, KoAP the Russian Federation other is established, than KoAP RSFSR, an order of calculation of the administrative penalty, and also are defined its minimum

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% And maximum the sizes.

The sum of the administrative penalty comes under to transfer in the budget in full according to the legislation of the Russian Federation.

Confiscation of the tool of fulfilment or administrative violation subject in customs business is provided for fulfilment of a significant amount of customs offences.

«Confiscation-it withdrawal of the property in favour of the state without indemnification or without sufficient indemnification. C the points of view of a constitutional law it is not authorised. A special case: withdrawal of subjects which was with - [263]

versheno punishable action or which were got by means of punishable action »[264].

According to item 3.7 KoAP the Russian Federation confiscation of the tool of fulfilment or an administrative violation subject is the compulsory gratuitous reference in the federal property or in the property of the subject of the Russian Federation of the things not withdrawn from a turn.

Is not confiscation withdrawal from illegal possession of the person who have made administrative violation, tools of fulfilment or an administrative violation subject: subjects according to federal - nym the law to returning to their lawful proprietor; withdrawn from a turn or the persons who were in illegal possession, made administrative violation, for other reasons and on this basis coming under to the reference in the property of the state or to destruction.

In practice for infringements of customs rules following subjects can be confiscated: the goods and the vehicles which are subjects of infringement of customs rules; the goods and vehicles with specially made hiding places used for moving through customs border of the Russian Federation of subjects of infringement of customs rules, with concealment from the customs control; vehicles, on * which were transported the goods which are subjects of infringement of customs rules [265 [266].

Administrative punishment in the form of confiscation is appointed only

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The judge.

Feature of application of punishment in the form of confiscation for the customs

Offences that such confiscation is made irrespective of is, whether are konfiskuemye the goods and vehicles the property of the person involved in a liability of infringement of customs rules.

Earlier according to KoAP RSFSR be confiscated the subject which is in a personal property of the infringer if other is not provided by acts could only. The customs legislation also supposed a confiscation, the fulfilment which was a subject of a customs offence irrespective of, whether there are corresponding goods, vehicles in the property of the infringer or are transferred to its in control or using that has been caused by that the proprietor far not always is the direct participant of customs legal relations.

The constitutional Court of the Russian Federation in connection with check of norms of the customs legislation has come to conclusion, that confiscation as a measure of administrative responsibility is applied irrespective of whom is the person, illegally

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Moving the goods and vehicles, and whether this person is established.

Now in KoAP the Russian Federation the question on the proprietor konfiskuemogo property (the offender or other person) is not solved. Stated allows scientists absolutely obosnovanno, in our opinion, to consider, as according to • ' current KoAP the Russian Federation confiscation of the tool of fulfilment or an offence subject is supposed irrespective of, whether there are they in sobstven -

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nosti the infringer or are transferred to its in control or using.

At disposal of legal proceeding about infringement of customs rules and application of administrative punishments it is necessary to commensurate most precisely weight of imposed punishment and degree of danger of a perfect customs offence. So, according to the Decision of Federal arbitration court of the Moscow district from December, 8th, 2000 № КА-А40/5573-00 as materials concrete considered by its under the cases appeal for review testified to fulfilment by the claimant of the customs offence consisting in nedeklarirovanii of a part of the imported goods, in the claim about a recognition wrongful impeachments for infringement of the customs would correct lo it is given up. However, considering circumstances of an offence and degree of fault of the claimant, the court has nullified the disputable decision regarding confiscation of not declared goods as the court of court of cassation has considered, that at application of collecting below the lowest limit such additional punishment, as confiscation as circumstances of an offence and degree of fault of the claimant will allow to exclude retaliatory measures of influence is unreasonably applied, having limited to measures preventive in the form of the applied size of the penalty - 25 % of cost of not declared goods [267 [268].

And it is necessary to notice, that judiciary practice confirms the law - • ' nost requirements of customs bodies about payment of customs payments and penej in that case when the offender insists on absence at it a duty to pay customs payments in view of possible confiscation of the goods within the limits of business about administrative violation. Such argument is insolvent as the customs legislation does not connect a duty on payment of customs payments with the moment of the termination a prorecension -

stva on such business in the relation of a party liable [269].

So, we see, that now the list of kinds of administrative punishments for customs offences includes only three kinds of punishments. It is represented, that it is absolutely not enough of it, the legislator unreasonably ignores law-enforcement potential of other kinds of the punishments which application completely would correspond to character made in sphere of customs business of administrative violations.

. As a measure of administrative responsibility KoAP provides also such punishment, as deprivation of the physical person who have made admini - strativnoe an offence, before the special right given to it.

Such punishment is established for rough or regular infringement of an order of using by this right in the cases provided by articles of Special part KoAP the Russian Federation. Term of deprivation of the special right cannot be less than one month and more than two years.

Problem of punishment in the form of deprivation of the special right is law and order strengthening in those areas in which for conducting certain activity special registration is necessary, reception of the permission of competent body. Thus, the person allocated with the special right, gets and korrespondirujushchie to this right of the duty which essence can be struck you - in necessity to use accorded a right according to the law, not abusing the special competences.

In sphere of customs business the special rights allocate variety of subjects. So, according to item 18 TK the Russian Federation activity of legal bodies as customs carriers, owners of warehouses of time storage, owners of customs warehouses and customs brokers (representatives) is supposed under condition of their inclusion accordingly in the Register of customs carriers, the Register of owners of warehouses of time storage, the Register of owners of customs warehouses or the Register of customs brokers (will present - pour).

Earlier with a problem of maintenance of discipline of use of the special rights in sphere of customs business the institute of cancellation of the licence (permission) to realisation of a certain kind of activity consulted: item 242 TK RSFSR for infringement of customs rules carried licence withdrawal to number of collectings on realisation of certain kinds of the activity provided by the Code.

In current KoAP the Russian Federation such measure of responsibility has not entered. However researchers absolutely fairly underline associative * communication of licence withdrawal with provided KoAP the Russian Federation administrative punishment in the form of deprivation of the special right given to the physical

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To the person.

Unlike earlier operating KoAP RSFSR, item 3.8 KoAP the Russian Federation does not define the maintenance of the special right which the offender can lose. It is represented, that as such right can quite be considered and the right of realisation of activity in sphere of customs business.

Thus, it is represented expedient to include such measure of administrative responsibility as deprivation of the person who have made administrative violation, before the special right given to it, shch in number of the punishments appointed for fulfilment of customs offences, having fixed its norms of special part KoAP the Russian Federation.

However considering, that in sphere of customs business can be allocated with the right of realisation of activity not only physical, but also legal bodies, most full potential punishment in the form of deprivation of the special right realises in case of legislative expansion of sphere of action of item 3.8 KoAP the Russian Federation, by its distribution not only on physical, but also on legal bodies.

In our opinion, administrative punishment in the form of deprivation spetsi - [270]

alnogo the rights can be provided, for example, for fulfilment of following customs offences: nedeklarirovanie or doubtful declaring of the goods and (or) vehicles (item 16.2 TK the Russian Federation); nonacceptance of measures in case of failure or force majeure action (item 16.6 TK the Russian Federation); nondelivery, delivery (transfer) without the permission of customs body or loss of the goods or documents on them (item 16.9 TK the Russian Federation); non-observance of an order of internal customs transit or a customs mode of the international customs transit (item 16.10 TK the Russian Federation); non-observance of terms of giving of the customs declaration or representation of documents and data (item 16.12 TK the Russian Federation); * carrying out cargo and (or) other operations without the permission of customs body (item 16.13 TK the Russian Federation); infringement of an order of a premise of the goods on storage, an order of their storage or an order of fulfilment with them operations (item 16.14 TK the Russian Federation).

Interesting both rather perspective it is represented to researchers and such new kind of administrative punishment, as disqualification.

Disqualification consists in deprivation of the physical person of the right to occupy supervising posts in an executive office of management of the legal person, to enter into board of directors (supervisory board), to carry out enterprise activity on management of the legal body, and shch also to exercise administration of the legal body in other cases provided by the legislation of the Russian Federation. Disqualification is established for the term from 6 months till 3 years.

Disqualification can be applied to the persons who are carrying out organizational-administrative or administrative functions in body of the legal person, to members of board of directors, and also to the persons who are carrying out enterprise activity without formation of the legal person, including to arbitration managing directors. [271]

In our opinion, it is necessary to fix disqualification as punishment for fulfilment of such customs offences which can be caused actus reus of officials of the subjects who are carrying out activity in sphere of customs business.

In particular, it can be structures of following customs offences:

Item 16.5 TK the Russian Federation «Infringement of a mode of a zone of the customs control»: moving of the goods and (or) vehicles or persons, including officials of the state bodies, except for officials of customs bodies, through borders of a zone of the customs control or in its limits or realisation of industrial or other commercial activity without the permission of customs body if such permission is obligatory;

Item 16.10 TK the Russian Federation «Non-observance of an order of internal customs transit or a customs mode of the international customs transit»: non-observance by a carrier of the term of internal customs transit established by customs body or the international customs transit or the route of transportation of the goods defined by customs body, and equally delivery of the goods in the zone of the customs control which distinct from is defined customs body as a place delivery;

Item 16.15 TK the Russian Federation «Non-presentation in customs body of the reporting»: non-presentation when due hereunder in customs body of the reporting in the cases provided by the customs legislation of the Russian Federation, and is equal representation of the reporting containing doubtful data.

As to such punishment as administrative arrest, that, learn -

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tyvaja its exclusive character, its use as a measure of administrative responsibility for fulfilment of customs offences is represented absolutely inexpedient in view of discrepancy of weight of prospective negative consequences of the social danger and to character of consequences of possible offences in customs sphere.

LOL

Article 3.9 of the Code of the Russian Federation about administrative violations.

Administrative exclusion for limits of the Russian Federation of foreign subjects or stateless persons assumes its appointment for strictly certain offences, impossible in sphere of customs business.

On the basis of consideration of system of the administrative punishments appointed for fulfilment of customs offences and the analysis of their kinds, it is possible to draw following conclusions:

1. The legislative establishment of system of administrative punishments, various on the character and influence degree on the offender, is necessary so that appointment of concrete punishment as much as possible dos -

* ' tigalo the purposes put before administrative punishment as a measure of administrative responsibility, according to character and degree of the social danger of an offence, with the account as persons guilty, and all circumstances of fulfilment of administrative violation.

2. The system of administrative punishments represents set of measures of administrative responsibility, and is characterised by following basic lines.

2.1. The system of administrative punishments differs unity, close interrelation of elements - separate kinds of administrative punishments which is expressed in a uniform basis of their legal regulation; the general harak -

• ' tere system elements - administrative punishments - as measures of administrative responsibility; their identical retaliatory essence, and also the uniform purposes and legal effects of application of administrative punishments.

2.2. The system of administrative punishments is the unique legislatively established list of administrative punishments that allows to provide uniform understanding and application of the given means pra - voohrany.

2.3. Separate kinds of punishments are located in the law in strictly certain order, in process of increase of their weight that should be considered as a legislature of subjects of the Russian Federation, and pravoprimenitelnymi bodies.

3. Kinds of administrative punishments are classified on the various bases:

- Depending on compulsion of appointment of this or that kind of punishments they can be the basic and additional;

- Depending on the subject of responsibility allocate the administrative punishments applied to physical persons, and the administrative punishments applied to legal bodies.

- Under the primary maintenance of retaliatory influence administrative punishments share on morally-legal (prevention), property (the administrative penalty, subject compensated taking, subject confiscation), limiting personal liberties of physical persons (administrative arrest, administrative exclusion), organizational (deprivation of the special right given to the physical person, disqualification).

- On a circle of persons, their representatives to appoint, administrative punishments are classified on appointed exclusively the judge (compensated taking of the tool of fulfilment or an administrative violation subject, confiscation of the tool of fulfilment or an administrative violation subject, deprivation of the special right, administrative arrest, administrative exclusion for limits of the Russian Federation of the foreign subject or the stateless person) and appointed the judge or other bodies (officials).

4. Administrative punishments for administrative violations in the field of customs business (infringement of customs rules) are:

4.1. The prevention which is expressed in official censure of the physical or legal person and taken out exclusively in writing.

4.2. The administrative penalty being the fine and expressed in size, multiple:

- To the minimum wage rate;

- Costs of a subject of administrative violation at the moment of the termination or administrative violation suppression;

- To the sum not paid and coming under to payment at the moment of the termination or suppression of administrative violation of taxes, gathering or the customs duties, or the sum of illegal currency transaction, or the sum of money resources or cost of the internal and external securities written off and (or) enlisted with default of the established requirement about reservation, or the sum of the currency gain which has been not sold when due hereunder, or the sum of the money resources which have been not enlisted when due hereunder into the accounts in authorised banks, or the sum of the money resources which have been not returned when due hereunder to the Russian Federation, or the sum of not paid administrative penalty.

4.3. Confiscation of the tool of fulfilment or an administrative violation subject - the compulsory gratuitous reference in a state ownership of the things not withdrawn from a turn, appointed exclusively judicially.

Feature of application of punishment in the form of confiscation for customs offences is that such confiscation is made irrespective of, whether are konfiskuemye the goods and vehicles the property of the person involved in a liability of infringement of customs rules, whether this person is established.

5. The list of administrative punishments for fulfilment of customs offences requires expansion. To character and the social danger made in sphere of customs business of administrative violations there would correspond law-enforcement potential of following kinds наказаний:.

5.1. Deprivation of the person who have made administrative violation, before the special right given to it, established for rough or regular infringement of an order of using by this right in the cases provided by articles of Special part KoAP the Russian Federation. It is represented expedient to include this measure of administrative responsibility in number of the punishments appointed for fulfilment of customs offences, having fixed

Its norms of special part KoAP the Russian Federation, in particular, in following cases: not - declaring or doubtful declaring of the goods and (or) vehicles (item 16.2 TK the Russian Federation); nonacceptance of measures in case of failure or force majeure action (item 16.6 TK the Russian Federation); nondelivery, delivery (transfer) without the permission of customs body or loss of the goods or documents on them (item 16.9 TK the Russian Federation); non-observance of an order of internal customs transit or a customs mode of the international customs transit (item 16.10 TK the Russian Federation); non-observance of terms of giving of the customs declaration or representation of documents and data (item 16.12 TK the Russian Federation); carrying out cargo and (or) other operations without the permission of customs body (item 16.13 TK the Russian Federation); infringement of an order of a premise of the goods on storage, an order of their storage or an order of fulfilment with them operations (item 16.14 TK the Russian Federation).

Considering, that in sphere of customs business can be allocated with the right of realisation of activity not only physical, but also legal bodies, most full potential punishment in the form of deprivation of the special right realises in case of legislative expansion of sphere of action of item 3.8 KoAP the Russian Federation, by its distribution not only on physical, but also on legal bodies.

5.2. Disqualification is necessary for fixing as punishment for fulfilment of such customs offences which can be obuslovle - ♦ ny actus reus of officials of the subjects who are carrying out activity in sphere of customs business.

In particular, it can be structures of following customs offences: infringement of a mode of a zone of the customs control (item 16.5 TK the Russian Federation), non-observance of an order of internal customs transit or a customs mode of the international customs transit (item 16.10 TK the Russian Federation), non-presentation in customs body of the reporting (item 16.15 TK the Russian Federation).

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A source: TUTNOV Andrey Igorevich. FEATURES OF ADMINISTRATIVE RESPONSIBILITY IN THE SPHERE OF CUSTOMS RELATIONS IN RUSSIA. DISSERTATION on competition of a scientific degree of the candidate of legal sciences. Moscow - 2005. 2005

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