General characteristics of administrative offenses in the field of customs.

Article 16.4 of the Code of Administrative Offenses of the Russian Federation establishes the responsibility of individuals for the movement across the customs border of undeclared or incorrectly declared Money/financial instruments.

It is important to pay attention to the fact that the legislator used rather broad concepts - money and financial instruments. Remember, cash is:

Financial instruments are understood as financial obligations and rights circulating on the market, as a rule, in documentary form. Financial instruments range from traditional primary instruments to various forms of derivative instruments (futures, options, etc.). The greatest attention is currently paid to such types as mortgages, bonds and other forms of financing by obtaining loans, as well as financial capital, which refers to shares and other documents that are evidence of ownership.

AT this case, in order to be held administratively liable, it is not necessary for a person not to declare funds or financial instruments, it is enough just to declare them incorrectly.

Sanctions are within the scope of administrative discretion:

1. Penalty of one to two times the undeclared amount
2. Confiscation of the subject of an administrative offense

However, the legislator in the article provided for both the possibility of applying sanctions separately, and their combined application. From point of view administrative law, the application of such sanctions seems to be correct, since it is aimed at creating an incentive not to violate the rules on the import of undeclared funds into the territory of the state. In the event that funds are withdrawn and a fine is imposed, it becomes unprofitable for the violator to violate the norms of customs legislation.

It is important to note that in the context of this article, a violation is considered committed if the imported amount is more than allowed for import without customs declaration. This amount is determined by the Agreement "On the procedure for moving individuals cash and (or) monetary instruments across the customs border of the Customs Union” dated July 5, 2010

In the event that funds are imported in foreign currency, they are recalculated at the exchange rate of the Central Bank of the Russian Federation on the date of their import or the discovery of an administrative offense.

To understand certain issues that arise in the practice of applying Art. 16.4 of the Code of Administrative Offenses of the Russian Federation, it is necessary to refer to the Letter of the Federal Customs Service dated July 18, 2013 No. 01-11 / 30804. This letter clarified the following issues:

1. What to do in case of unreliable declaration of cash and financial instruments?

If the unreliably declared amount of cash and (or) the value of traveler's checks is less than that permitted by the Agreement, then the part that the Agreement allows to import (export) without a written customs declaration is deducted from the entire transferred amount and (or) value. In the case when the incorrectly declared part is greater than the part allowed by the Agreement, then only the declared part is subject to deduction, and the part allowed by the Agreement is not deducted.

1. How to calculate the amount of monetary instruments?

When calculating the amount of monetary instruments, with the exception of traveler's checks, the so-called permitted part is not deducted from their value, since, in accordance with the Agreement, their import (export) by an individual is carried out subject to a written customs declaration, regardless of the nominal value or amount in the currency of the state - a member of the Customs Union or a foreign currency, the right to receive which is certified by a monetary instrument.

This article was twice challenged in the Constitutional Court of the Russian Federation.

1. Definition of November 6, 2014 N 2477-O

Applicant's position: Norm Art. 16.4. The Code of Administrative Offenses of the Russian Federation is unclear, fuzzy and vague, not taking into account the specifics of the currency as a subject of customs relations, which, in the conditions of a "floating" exchange rate, deprives citizens of the opportunity to make the correct calculation of cash in the equivalent of US dollars at the rate of the Central Bank Russian Federation and thus - to foresee the consequences of their behavior associated with non-declaration or false declaration of the exported currency; the sanction of this article in the form of an administrative fine in the amount of one to two times the undeclared amount of cash and (or) the value of monetary instruments or confiscation of the subject of an administrative offense is contrary to the constitutional principles of fairness and proportionality, since it is subject to appointment to persons who are the legal owners of funds, including including when voluntarily reporting to the customs authority about the amount of cash transported, and does not allow taking into account the amount of undeclared cash, material, marital status citizen, his attitude to the deed.

COP position: The very fact of import (export) of currency is not considered in the current legislation as an encroachment on the legally protected interests of the Russian Federation in the economic sphere, i.e. as an act representing a public danger, as well as a one-time undeclared import into the Russian Federation (export from the Russian Federation) by resident individuals of cash in an amount not exceeding the equivalent of 10,000 US dollars is not considered to represent a public danger and having an illegal nature. Illegal, namely, encroaching on the established procedure for moving the currency of the member states of the Customs Union (subparagraph 5 of paragraph 2 of Article 355 Customs Code customs union) across the customs border of the Russian Federation and therefore entailing the use of measures of state coercion, its undeclared import (export) is recognized only in an amount in excess of that permitted by law and (or) an international treaty (Decree of the Constitutional Court of the Russian Federation dated May 27, 2008 N 8-P ).

Thus, Article 16.4 of the Code of Administrative Offenses of the Russian Federation, which establishes administrative liability for non-declaration or false declaration by individuals of cash and (or) monetary instruments moved across the customs border of the Customs Union and subject to written declaration, if these actions (inaction) do not contain a criminal offense act, does not imply its arbitrary application.

1. Definition of September 29, 2015 No. 1900-O

Applicant's position: Art. 16.4 of the Code of Administrative Offenses of the Russian Federation allows an individual to be held administratively liable for not declaring cash if he is in the "green" corridor with the currency to be declared, in the absence, as the applicant believes, normative act, establishing the procedure for filing a customs declaration, equating the fact of being in the "green" corridor to the act of declaring and to crossing the customs border of the Customs Union, as well as containing a direct ban on being in the "green" corridor with the currency subject to declaration. In this regard, the Applicant requests that the disputed legal provision be declared inconsistent with the Constitution of the Russian Federation, its Articles 17, 18, 21, 34 and 35.

Position of the COP : The objective side of the offense provided for in Article 16.4 of the Code of Administrative Offenses of the Russian Federation is specified by the customs legislation of the Customs Union, which determines the procedure for moving cash across the customs border, as well as the obligation of individuals to declare it in excess of the amount permitted by the customs legislation of the Customs Union for import (export) without customs declaration in writing.

In accordance with Article 357 of the Customs Code of the Customs Union, at the places of arrival in the customs territory of the Customs Union or departure from this territory, for the purposes of customs declaration of goods for personal use, a double corridor system can be used, the application of which provides for the independent choice of an individual crossing the customs border, customs declaration in writing of goods for personal use and the corresponding corridor ("green" or "red") for customs operations.

According to paragraph 1 of Article 6 of the Agreement between the Government of the Russian Federation, the Government of the Republic of Belarus and the Government of the Republic of Kazakhstan dated June 18, 2010 "On the procedure for the movement by individuals of goods for personal use across the customs border of the customs union and the performance of customs operations related to their release" in places arrival in the customs territory of the customs union or departure from this territory (hereinafter referred to as the place of arrival or departure), a double corridor system may be applied; the "green" corridor is a place specially marked at the points of arrival or departure, intended for the movement of individuals across the customs border in accompanied baggage of goods for personal use that are not subject to customs declaration, while such persons do not have unaccompanied baggage; The "red" corridor is a place specially marked at the places of arrival or departure, intended for the movement by individuals across the customs border in accompanied baggage of goods subject to customs declaration, as well as goods in respect of which declaration is carried out at the request of an individual. By virtue of Article 8 of the said Agreement, the declaration of goods for personal use is carried out by individuals when they cross the customs border simultaneously with the presentation of goods to the customs authority; declaration of goods for personal use, with the exception of those sent in international mail and placed under the customs procedure of customs transit, is made in writing using the passenger customs declaration; the form of the passenger customs declaration, the procedure for its completion, submission and registration are determined by the decisions of the Commission of the Customs Union.

Thus, the given regulations directly indicate that being in the "green" or "red" corridor is the movement of cash across the customs border, and the customs declaration of cash to be declared is carried out by submitting a passenger customs declaration in writing to the customs authority, and do not imply , contrary to the applicant's opinion, arbitrary application of Article 16.4 of the Code of Administrative Offenses of the Russian Federation.

In addition, the subjects provided for in Article 16.4 of the Code of Administrative Offenses of the Russian Federation administrative offenses By virtue of Part 1 of Article 1.5, Part 1 of Article 2.1 and Article 2.2 of the Code of Administrative Offenses of the Russian Federation, in any case, they are liable only if there is fault. As follows from the presented by A.A. Gugeshashvili of the materials, the justice of the peace established that the applicant did not fill out the passenger customs declaration, was stopped by the customs inspector after he crossed the line marking the beginning of the "green corridor" customs control zone, and walked a sufficient distance to make it possible to conclude that he intended to declare he did not have goods and cash subject to mandatory written declaration, and did not apply to customs inspectors in the "green" corridor for help in filling out a passenger customs declaration in order to declare his currency.

Administrative offenses in the field of customs regulation in the Customs Union infringe on the economic interests and security of the Member States of the Customs Union, the population of countries, environmental well-being, the moral foundations of society.

The integration processes of Russia's accession to the Customs Union did not significantly affect its law enforcement system. According to Art. 7 of the Customs Code of the Customs Union, the customs authorities of the member states of the customs union bring persons to administrative responsibility in accordance with the national legislation of the states. Types of administrative offenses, as well as the procedure and principles for bringing persons to administrative responsibility are determined by the legislation of the member states of the customs union with the specifics established by international treaties.

The normative basis for administrative responsibility in the field of customs in the customs territory of Russia is the "Code of the Russian Federation on Administrative Offenses" dated December 30, 2001 No. 195-FZ. This document defines:

ü elements of administrative offenses in the field of customs;

ü system administrative penalties and principles of their application;

ü the range of subjects authorized to bring the perpetrators to administrative responsibility;

ü the procedure for bringing to administrative responsibility and its procedural form;

Relying on general concept administrative offense, contained in part 2 Article.2.1. Code of Administrative Offenses of the Russian Federation, the following definition of an administrative offense in the field of customs can be given

Administrative offense in the field of customs (violation of customs rules)- illegal guilty action (inaction) of an individual or legal entity that encroaches on the rules of customs regulation established by the customs legislation of the Customs Union and the Russian Federation, for which administrative liability is established by the Code of Administrative Offenses of the Russian Federation.

Taking into account the integration features of customs regulation on present stage, illegal acts in the field of customs, infringe on public relations in the field of:

the order of movement of goods and funds international transportation through the customs border of the customs union;

the procedure for their movement through the single customs territory of the customs union while under customs control;

· the procedure for customs clearance, release and use of goods and means of international transportation in accordance with the declared customs procedure;

application of customs control measures;

· rules for establishing and collecting customs payments;

rules for providing foreign trade participants customs privileges and their use;

implementation of power relations between customs authorities and persons exercising the rights of possession, use and disposal of goods and vehicles ( normal work customs authorities).

Chapter 16 of the Code "Administrative violations in the field of customs (violations of customs rules)" contains 23 articles that fix the composition of customs offenses. Previously, similar compositions were enshrined in the Customs Code of the Russian Federation of 1993. Chapter 39 of the Labor Code of the Russian Federation 1993. contained 40 offenses of customs rules. In connection with the updating of customs legislation and the adoption of the Customs Code of the Russian Federation in 2003, these norms were revised, generalized according to generic characteristics, partially decriminalized and included as a separate chapter 16 in the special part of the Code of Administrative Offenses of the Russian Federation ..

Within the framework of the Customs Union, offenses detected in the customs territory of the Russian Federation, as well as offenses detected outside the customs territory of the Russian Federation, are subject to qualification according to the composition of Chapter 16 of the Code of Administrative Offenses of the Russian Federation, if they are related to the non-delivery of goods (documents to them) issued by the customs authorities of the Russian Federation in accordance with with the transit procedure.

The norms of Chapter 16 of the Code of Administrative Offenses of the Russian Federation are legal basis administrative responsibility in the field of customs. The actual basis for the onset of administrative responsibility is the actually committed violation of customs rules, which must have a combination of objective and subjective features (composition):

· Object of a customs offense;

· The objective side of the customs offense;

The subject of a customs offense;

· The subjective side of the customs offense.

ü Object of a customs offense - public relations regulated by the norms of customs legislation, which the fact of committing an offense causes harm or the threat of harm. Depending on the degree of specification, a generic (general) and a direct object of a customs offense are distinguished.

· generic object customs offense - public relations regulated by the norms of the customs law of Russia and the Customs Union;

· immediate object customs offense - specific public relations that arise at the stages of customs operations: declaring goods, collecting and paying customs payments, placing goods in a temporary storage warehouse, conducting customs control, etc.

It should be distinguished from the object of a customs offense subject, which is a sign of an object and represents a thing of the material world, through the impact on which an offense is committed (goods moved with concealment from customs control of a thing; goods lost due to force majeure; undeclared currency and other monetary instruments).

ü The objective side of the customs offense- the external expression of the offense, which includes the act and its signs, described in the disposition of the law enforcement norm of Chapter 16 of the Code of Administrative Offenses of the Russian Federation. The signs of the objective side may include:

time of the offense. For example: the actual movement of goods across the customs border outside the working hours of the customs authorities (clause 1 of article 16.1 of the Code of Administrative Offenses of the Russian Federation);

the place where the offense was committed. For example, the importation of goods and Vehicle to the customs territory in addition to checkpoints across the State Border and other established places of arrival (clause 1, article 16.1 of the Code of Administrative Offenses of the Russian Federation);

The method of committing an offense, which is the methods used by the offender to commit an unlawful act. For example, violation of customs rules by way of submission of invalid documents when customs clearance(Article 16.7 of the Code of Administrative Offenses of the Russian Federation)

a sign of a “third party” participating in legal relations in one form or another. For example: performance of customs operations on behalf of the declarant and other interested parties by a legal entity not included in the Register of customs brokers (representatives) (clause 1, article 16.23 of the Code of Administrative Offenses of the Russian Federation);

The objective side can be expressed in 2 forms:

· action form violating a direct prohibition (destruction, damage, removal, change or replacement of means of identification, Art. 16.11. Administrative Code of the Russian Federation)

· form of inactivity violating a legal requirement (failure to submit to customs Department reporting, Art. 16.15 of the Code of Administrative Offenses of the Russian Federation).

According to the design features of the objective side, customs offenses are formal, that is, they do not require the mandatory presence of material harm caused by the offense.

ü Subject of a customs offense – a person who has committed an offense enshrined in the articles of Chapter 16 of the Code of Administrative Offenses of the Russian Federation.

Subjects of violation of customs rules may be:

· individual subjects - natural persons

· collective entities - legal entities

Signs of an individual The subject of the offense can be divided into two groups:

· general that any person held administratively liable must possess. There are two of them: reaching the age of 16 (Article 2.3 of the Code of Administrative Offenses of the Russian Federation) and sanity (Article 2.8 of the Code of Administrative Offenses of the Russian Federation);

· special associated with the peculiarity of their activities (an official, individual entrepreneur without forming a legal entity), or a feature of the legal status of a person (military, called up for military training, having a special rank, minor, citizen, foreigner, stateless person ). If the norm does not contain special features of the subject, therefore, any subject that has the general features of the subject can be held liable for it.

A feature of Chapter 16 of the Code of Administrative Offenses of the Russian Federation is that, according to its norms, persons engaged in individual activities without forming a legal entity (IPBUL) are held administratively liable as legal entities, although according to general rule administrative legislation, they are brought to administrative responsibility as officials (Article 2.4 of the Code of Administrative Offenses of the Russian Federation). The legislator toughens the responsibility of the IPBUL in the field of customs, given the potentially high degree of public danger of customs offenses that can be committed in the course of their economic activity these subjects of foreign economic activity.

collective subjects customs offenses can be divided into two groups according to the limits of delinquency:

· general - legal entities that have a general capacity for delinquency due to the creation and registration in the manner prescribed by law;

· special – the circle of legal entities specified in the law enforcement norm. For example, Art. 16.23 of the Code of Administrative Offenses of the Russian Federation provides for the liability of legal entities carrying out commercial activity in the field of customs: customs representatives, customs carriers, owners of temporary storage warehouses, owners of customs warehouses, authorized economic operators, etc.

Most of the articles of Chapter 16 of the Code of Administrative Offenses of the Russian Federation in terms of subject composition are universal in nature, that is, they define the widest possible range of subjects of offenses: individuals, legal entities and officials. However, there are separate structures that fix only natural persons as offenders ( Article 16.4. Failure to declare or false declaration by individuals of foreign currency or the currency of the Russian Federation). Some articles, on the contrary, exclude individuals from the circle of subjects of the offense (Article 16.23. Illegal implementation of activities in the field of customs).

ü The subjective side of the customs offense- the guilt of the offender, i.e. a set of features characterizing the mental attitude of a person to the deed and its consequences is expressed in the form of intent and negligence.

The presence of guilt is essential for attributing an event to an offense. Article 1.5. The Code of Administrative Offenses of the Russian Federation, fixing the presumption of innocence, indicates that a person is subject to administrative liability only for those administrative offenses in respect of which his guilt has been established. Forms of guilt of individuals (Article 2.2 of the Code of Administrative Offenses of the Russian Federation):

· intent - the person who committed the offense was aware of the illegal nature of his action (inaction), foresaw its harmful consequences and desired the onset of such consequences or knowingly allowed them or treated them indifferently.

· imprudence - the person who committed the offense foresaw the possibility of the occurrence of harmful consequences of his action (inaction), but without sufficient grounds, presumptuously counted on preventing such consequences, or did not foresee the possibility of such consequences, although he should have and could have foreseen them.

Code of Administrative Offenses of the Russian Federation designs a form guilt of a legal entity by type of objective imputation (clause 2, article 2.1 of the Code of Administrative Offenses of the Russian Federation). Entity is recognized guilty of committing an administrative offense if it is established that he had the opportunity to comply with the rules and regulations, for the violation of which administrative responsibility is provided, but this person did not take all measures depending on him to comply with them.

common feature for all types of offenses in the field of customs is that they encroach on social relations regulated by the norms of customs law of the Customs Union and the Russian Federation. According to a number of properties, the offenses described in Chapter 16 of the Code of Administrative Offenses of the Russian Federation can be divided into groups (classified). The intrageneric classification of customs offenses has a cognitive meaning, as it allows to evaluate the illegal phenomenon in a multifaceted and more profound way. Some classification results are presented in the table.

Other attempts have been made in the scientific literature to classify customs violations contained in Chapter 16 of the Code of Administrative Offenses of the Russian Federation. However, they were artificial. Of additional interest may be the selection contraband group of offenses, which include offenses of Article 16.2; 16.2; 16.4 of the Code of Administrative Offenses of the Russian Federation, as well as the division of offenses into lasting and non-lasting, which is of practical importance for calculating the statute of limitations in the process of law enforcement activities to bring persons to administrative responsibility.

Issues of delimitation of customs offenses and crimes in the customs sphere (Articles 188, 189, 190, 193, 194 of the Criminal Code of the Russian Federation) are resolved in a comprehensive manner. Main fundamental difference Crime from misconduct consists in the degree of social danger: it is higher for a crime than for a misdemeanor. The criteria for differentiation may be found in the law enforcement norm itself or arise from general theory rights. For example, clause 1 of Article 188 of the Criminal Code of the Russian Federation “Smuggling” contains such a qualifying feature as a large size. Paragraph 2 of the same article contains an indication of a special subject of the offense: narcotic drugs, psychotropic substances, their analogues, etc., in respect of which special rules have been established for moving across the customs border of the Russian Federation. The differences between a customs offense and a crime may include guilt in the form of intent or direct intent, characteristic of certain types crimes. Distinctive feature is also the subject composition of offenses: in contrast to an administrative offense in the field of customs, the subject of a criminal offense can only be individual subject: individual or official.

Chapter 16. Administrative offenses in the field of customs (violations of customs rules)

General comment

The commented chapter of this Code consists of 23 articles. The previous Code of the RSFSR did not have a similar chapter, since liability for violations in the field of customs was established by the Customs Code of the Russian Federation (1993), which contained 40 articles. The Code of the RSFSR provided for liability for violations of customs rules in only two articles.

The Code of the Russian Federation on Administrative Offenses and the new Customs Code of the Russian Federation (2003) have significantly changed the situation in the field of legal regulation administrative liability for violation of customs legislation. It should be noted that a number of acts contained in the Customs Code of the Russian Federation (1993) are not currently recognized as offenses, and many norms establishing administrative responsibility have undergone significant transformation.

Since October 1, 2004 entered into force new edition Chapter 16 of this Code. The need for its adoption was due to the fact that this Code was adopted before the entry into force of the Customs Code of the Russian Federation (2003) and therefore could not reflect changes regarding the rules for the movement of goods and vehicles across the customs border of the Russian Federation.

The generic object of the offenses provided for in Chapter 16 of the Code of Administrative Offenses of the Russian Federation are public relations arising from the movement of goods and vehicles across the customs border of Russia and the conduct of customs control.

1. Violation of the procedure for the arrival of goods and (or) vehicles into the customs territory of the Russian Federation by importing them in addition to checkpoints through ...

Non-observance by the carrier of the period of internal customs transit or international customs transit established by the customs authority, or ...

Destruction, removal, alteration or replacement of means of identification used by the customs authority, without the permission of the customs authority, as well as damage to or ...

1. Failure to comply with the established deadlines for filing a full customs declaration in case of periodic temporary declaration or customs declaration and (or) ...

1. Unloading, loading, unloading, reloading (transshipment) and other cargo operations, acceptance for transportation of goods under customs control, sampling ...

Violation established requirements and conditions for placing goods in a customs warehouse, temporary storage warehouse, free warehouse or warehouse of the consignee of goods...

Failure to submit reports to the customs authority within the prescribed period in cases provided for by the customs legislation of the Russian Federation, as well as ...

Violation of the terms of temporary storage of goods - shall entail the imposition of an administrative fine on citizens in the amount of one thousand five hundred to two thousand five hundred ...

Submission of invalid documents for the release of goods before the submission of the customs declaration, if the information contained in such documents affects ...

1. Non-exportation from the customs territory of the Russian Federation by individuals of temporarily imported goods and (or) vehicles within the established time limits ...

1. Failure to comply with the conditions for placing goods and (or) vehicles under the customs regime, the content of which provides for full or partial ...

1. Non-declaration in the prescribed form (oral, written or electronic) of goods and (or) vehicles subject to declaration, except ...

1. Use, transfer for use or possession or disposal by other means of conditionally released goods in respect of which privileges have been granted ...

Acquisition, use, storage or transportation of goods and (or) vehicles that are illegally moved across the customs border of the Russian Federation ...

Violation of payment deadlines customs duties, taxes payable in connection with the movement of goods and (or) vehicles across the customs border ...

1. Performance of customs operations on behalf of the declarant or other interested parties by a person not included in the Register of customs brokers (representatives), or...

1. Failure to comply with established in accordance with the legislation of the Russian Federation on state regulation of foreign trade activities and not wearing ...

Failure to declare or false declaration by individuals of foreign currency or the currency of the Russian Federation, moved through the customs ...

Movement of goods and (or) vehicles or persons, including officials government agencies, with the exception of officials of the customs authorities, ...

1. Non-acceptance by the carrier in the event of an accident or force majeure or other circumstances that prevent the delivery of goods and (or) ...

Submission by the declarant or other person to the customs broker (representative) or other person of documents for submission to the customs authority at the customs ...

Mooring to a ship or other floating craft under customs control, except for cases where such mooring is allowed, - entails ...

1. Non-delivery of goods transported in accordance with internal customs transit or placed under the customs regime of international customs transit, in ...

1. Does the fine koap 16.1 h 3 fall under the 50% discount

1.1. Hello Ali.

No you can not. This exemption is only granted for certain security offenses. traffic(Part 1.3. Article 32.2 of the Code of Administrative Offenses of the Russian Federation).
"Code of the Russian Federation on Administrative Offenses" dated December 30, 2001 N 195-FZ (as amended on December 27, 2019) (as amended and supplemented, entered into force on February 1, 2020)
Code of Administrative Offenses of the Russian Federation Article 32.2. Execution of the decision to impose an administrative fine
1.3. When paying an administrative fine by a person brought to administrative responsibility for committing an administrative offense under Chapter 12 of this Code, with the exception of administrative offenses under Part 1.1 of Article 12.1, Article 12.8, Parts 6 and 7 of Article 12.9, Part 3 of Article 12.12, Part 5 of Article 12.15, part 3.1 of article 12.16, articles 12.24, 12.26, part 3 of article 12.27 of this Code, no later than twenty days from the date of the decision to impose an administrative fine, an administrative fine may be paid in the amount of half the amount of the imposed administrative fine. If a copy of the decision on the imposition of an administrative fine, sent to the person brought to administrative responsibility, by registered mail by mail, came to his address after the expiration of twenty days from the date of issuance of such a decision, the specified period is subject to restoration by a judge, body, official that issued such a decision, at the request of the person brought to administrative responsibility. The decision to reject the said petition may be appealed in accordance with the rules established by Chapter 30 of this Code. If the execution of the decision on the imposition of an administrative fine was delayed or spread by installments by the judge, body, official who issued the decision, the administrative fine shall be paid in full.