As mentioned in the first article, the draft VietnamBorder GuardLawhas many overlaps with the duties of the Customs authority as stipulated in the CustomsLaw. Below are the specific analyses of the General Department of Customs.

The CustomsLaw stipulates that within the scope of customs operations, the Customs
authorityis responsible for customs inspection, supervision and control over goods and
means of transport to actively prevent and combat smuggling and illegally transporting
goods across the border. Photo: T. Binh. 

Regarding the content of the draft VietnamBorder GuardLaw, submitted to the National Assembly on October 21, 2020, through review, the General Department of Customs finds that in the draft law, the functions and tasks of the Border Guards are overlapping with functions and duties of the Customs office.

Specifically, Clause 3, Article 5 of the draft Vietnam Border Guard Law stipulates the responsibilities of the Border Guard are to "ensure the enforcement of the law in border areas and border gates".

According to the analysis of the General Department of Customs, regulations in the draft are very wide and unclear. In the border gate area, there are many law enforcement forces, such as the Customs, the Animal Quarantine, the Plant Quarantine, the Medical Quarantine, the Police.

The above provisions make it understood that the Border Guard is a supervisory force, ensuring law enforcement in all areas of other forces in the border areas and border gates, while this function is only administered by the National Assembly, the People's Councils at all levels and the Vietnam Fatherland Front; not a function of the Border Guard.

In Point d, Clause 2, Article 10, the draft provides principles for coordinating the implementation of border guard tasks. “When detecting a legal violation in the same area under the handling competence of many agencies, organizations and forces; any agency, organization or force that is discovered first shall handle it according to the provisions of law".

The above provisions are overlapping or inconsistent with the provisions of the Customs Law.

Clause 2, Article 7 of the Customs Law states that: “In the customs operation area, the Customs office is responsible for inspecting, supervising and controlling goods and means of transport and handling violations in thecustomslaw in accordance with Vietnamese law and international treatieswhich the Socialist Republic of Vietnam is a signatory”.

Clause 1, Article 88 of the CustomsLaw stipulates that: “Within the scope of customs operations, the Customs office is responsible for customs inspection, supervision and control over goods and means of transport to actively prevent combating smuggling and illegal cross-border transportation of goods. In case that goods or means of transport have notbeentaken out of the scope of customs operation yet, if any agency, organization, individualdetectssmuggling, illegally transporting goods across the border, it shall immediately notify the Customs office for inspection and handling”.

Clause 2, Article 10 and Clause 1, Article 12 of the Government's Decree No.01/2015/ND-CP dated May 10, 2015 detailing the scope of customs operation; responsibility for coordination in preventing and combating smuggling and illegal cross-border transportation of goods (as amended and supplemented in Decree No. 12/2018/ND-CP) stipulates: “State agencies are responsible for the coordination to ensure that each field has only one State management agency to take the lead in implementing, avoiding loopholes, overlapping, and not hindering the normal operation of other State agencies”.

Clause 1, Article 12 of Decree No. 01/2015/ND-CP dated May 10, 2015 stipulates responsibilities: “when the Customs office takes charge of the task of preventing and combating smuggling and illegal cross-border transportation of goods in accordance with the CustomsLaw”.

Clause 1, Article 2 of the Prime Minister's Decision No. 19/2016/QD-TTg dated May 6, 2016 promulgating the Regulation on responsibilities and coordination of activities among theState management agencies in fighting and combating smuggling, trade fraud and counterfeit goods stipulates that:"complying with current law provisions on functions and tasks for the fight against smuggling and commercial fraudand counterfeit goods. Each area and field is chaired by an agency which chairs and coordinates in the fight against smuggling, commercial fraud and counterfeitgoods; other agenciesare responsible for coordinating and participating with the leading force according to their functions, tasks and powers prescribed by law.In case of detecting acts of smuggling, commercial fraud, manufacturing or trading counterfeitgoodsin the locality or field of another agency,the detecting agency shall immediately notify the leading responsible agencyin charge of handling, to coordinate and support each other to successfully complete tasks according to assigned functions and tasks”.

“Thus, the Customs Law and the current legal documents have assigned the Customs offices in the areas of customs operation to take charge of the task of preventing and combating smuggling and illegal cross-border transportation of goods. The draft Border Guard Law as mentioned above is inappropriate, overlapping with the Customs Law,” saidthe General Department of Customs.

In Clause 5, Article 13 of the draft Law, providing for the Border Guard's duties “Immigration control at border gates is managed by the Ministry of National Defense; border cross-border control”; Clause 3 Article 14 of the draft Law "Apply the forms of ... inspection, control and handling of vehicles when there are signs of legal violation in border areas, border gates according to the provisions of law".

According to the General Department of Customs, the draft regulations on the duties of the Border Guard forimmigration control and border crossing control (new content added but not limited to the scope and subject of control) is understood that controlling all cross-border activities, including import and export goods and immigration vehicles. This coincides with the functions and duties of the Customs authorityas stipulated in the Law on Customs 2014.

In case the draft Vietnam Border Guard Law with the above provisions is passed, it will lead to two agencies (the Customs and the Border Guard) performing the same task of carrying out procedures, inspection, supervision and control for immigration means; import and export goods.

This is not consistent with the policy of the Party, State, and Government on trade facilitation and renovation, organizational arrangement of the political system.

At the same time, overlapping with the functions and duties of the Customs authority that are performed in accordance with the provisions of the Customs Law, giving rise to additional administrative procedures, prolonging customs clearance time, causing trouble for enterprises, incurring additional costs(because the Customs office has cleared customs procedures, collected fees and taxes, the Border Guard shall carry out the procedures, check again),arising the case that the Customs officehas allowed the clearance of export - import goods, exit and entry vehicles but they will not clear customs when they have not been checked by the Border Guard.

This is not consistent with international practices, the direction of the Politburo and the Government on reform of administrative apparatus and reforms, and support for import-export enterprises (Resolution No. 19-2017/ NQ- CP dated February 6, 2017 of the Government stipulating the implementation of solutions and tasks to enhance national competitiveness and improve business environment).

In fact, the Ministry of Defense had to remove regulations on inspection of import and export goods when promulgating Circular No. 09/2016/TT-BQP detailing and guiding the implementation of a number of articles of Decree No. 112/2014/ND-CP dated November 21, 2014 on regulations on the management of land border gates.

The Government issued Resolution No. 19-2017/NQ-CP dated February 6, 2017 instructing the Ministry of Defense to study and propose the amendment of Article 9 of the Ordinance on Border Guard on the competence to inspect and controlvehicles.

Regulations on the control function of the Border Guard are also inconsistent with international practices under international treaties which Vietnam has signed or acceded.

Specifically, the International Convention on the Simplification and Harmonization of Customs Procedures 1999(Vietnam is a member) states that:“All goods, including means of transport, enter or leave the territory of Customs,regardless of whether it is subject to customs duties and other taxes, are subject to Customs inspection”.

In all countries around the world, the Customs office is the agency performing the inspection, supervision and control of entry and exitvehicles, baggage, import and export goods.

“The above provisions lead to all forces at the border gate (Customs, Border Guard, Police, Quarantine, Border Management Board) implement functions on inspecting, controlling, carrying out the procedures for import and export goods, vehicles and people on entry and exit. Such regulations lead to a state of disorder, lack of coordination, inconsistent law implementation,affecting import-export enterprises and immigration. In the event of smuggling or trade fraud, the responsibility of the agency or unit in charge of taking responsibility before the Government and the State for this situation will not be determined, increasing the risk of smuggling and trade fraud,” said the General Department of Customs.

Facing a series of problems and shortcomings mentioned above, the General Department of Customs requested leaders of the National Assembly, Committees of the National Assembly and the Ministry of Justice to study and consider to complete the draft Vietnam Border Guard Law in accordance with international treaties, Customs Law, Tax Law, other laws related to the management of import and export goods, means of entry and exit at border gates, in line with the orientation of organizational and administrative reforms set by the Party, State, and Government.