Members of the Ukrainian Business Council, до складу якої входить 110 business associations of various sectors of the economy, analyzed draft law No. 5420 regarding the criminalization of smuggling and came to a conclusion, that in the proposed to 2 reading the editorial, this project poses significant threats to law-abiding business, since its provisions are formulated in this way, what contain significant corruption risks, and also pose a threat to the activity of primarily legal business and in no way contribute to solving the problem of shadow imports.
First of all, it should be emphasized, що межа кримінальної відповідальності за статтею 201-3 законопроекту є необґрунтовано низькою. In particular, criminal liability is proposed in case of illegal movement of goods across the customs border in the amount of, with a share of more than 1,342 million. Instead, for the qualification of a criminal offense according to the article 212 of the Criminal Code of Ukraine (CCU) «Ухилення від сплати податків», межа кримінальної відповідальності за ухилення від сплати податків (which are customs payments) is 4,026 million.
Since such changes relate specifically to responsibility for economic crimes and public danger consists precisely in non-payment of taxes and other payments, then it is advisable to be guided by those similar to the content of the article 212 KKU criteria for determining the threshold of criminal responsibility. More, the issue of the customs value of goods is often the subject of a dispute between the declarant and the customs authority, and therefore cannot act as a threshold for criminal liability.
Significant risks for honest business are also seen in the proposed version of the Notes to Art. 201 CCU, which refers to smuggling, including the submission of documents to the customs authority as a basis for the movement of goods, containing false information about the name of the goods, their weight or quantity, country of origin, sender or recipient, the number of cargo spaces, their markings and numbers, false information, necessary to determine the product code according to the Ukrainian classification of goods of foreign economic activity and its customs value, which led or could lead to an unlawful exemption from payment of customs payments or a reduction in their amount. In practice, when declaring goods, the customs authority and the declarant often have disputes regarding the determination of the customs value, product code, country of origin, scales, etc. More, proposed revision of the article 201-3 does not imply necessity proving intent to commit a criminal offense.continue Reading »