نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه حقوق تجارت بین الملل، مالکیت فکری و فضای مجازی، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Introduction
The import & export of goods into territory of each country is subject to custom laws & regulations that each country approves and implements in accordance with its political, economic, and cultural conditions. One of the key concepts in the field of custom law is “prohibited goods”, whose range of examples can be changed according to circumstances. In February 2022, a note was added to sub-paragraph "C" of Article 1 of Law for Combating Goods and Currency Smuggling (LCGCS), according to which goods whose export or import is prohibited by the orders of Council of Ministers is tantamount to restricted goods. This amendment caused serious ambiguity regarding examples of prohibited goods, so the Iran’s Customs Department issued Circular No. 13982460 upon which new provision was interpreted as limited to LCGCS and government-prohibited goods were still considered subject to custom regulations
governing prohibited goods, including Articles 35 and 105 of Custom Affairs Law. This interpretati on caused a dispute between Iran’s Customs Department and some owners of imported goods, so the circular was protested in Administrative Court of Justice. After performing the hearing, the General Board of Administrative Court of Justice (GBACJ) ruled, in accordance with Judgement No. 140331390000321842 dated April 30, 2024, that based on the new added note, government-prohibited goods are not subject to custom regulations governing prohibited goods by the law and annulled the circular. The annulment of the circular raises the question of whether distinction made between government-prohibited goods and goods prohibited in decision of GBACJ has a legal basis? Another question that has to be answered is whether the decision will invalidate government orders to prohibit import of unnecessary goods while the country is under economic sanctions?
Methods
This research is based on an analytical-critical methodology and its content collected and analyzed through review of library resources and judicial opinions. To achieve the objectives, as first step, various regulations governing prohibited goods are examined; then from substantive point of view, the compliance of decision of GBACJ with relevant regulations is evaluated and analyzed.
Findings
Findings of this research indicate that distinction between government-prohibited goods and goods prohibited by law has no legal basis, because according to paragraph "b" of Article 122 of the Custom Affairs Law, goods prohibited by government orders are one of the clear examples of goods prohibited by law. In addition, the purpose of enactment of added note to sub-paragraph "C" of Article 1 of LCGCS is that if goods whose import or export has been prohibited by the government orders is smuggled into country, it will be considered as goods tantamount to restricted goods in terms of application of criminal penalties and will be subject to the provisions mentioned in chapter 3 (Articles 18 to 21) of LCGCS, and the penalties mentioned in chapter 4 regarding the smuggling of prohibited goods will not be applied to them. Furthermore, the interpretation presented in Judgement of GBACJ will have the unacceptable effect that the prohibitions imposed by government orders will easily become ineffective and that the government will not practically be able to manage the balance of foreign exchange payments through import control in special circumstances such as current conditions of economic sanctions. It is, therefore, suggested that in order to overcome this situation and prevent the abuse by importers, the Iran’s Customs Department, should submit through the Government, to the Parliament a bill interpreting the added note to sub-paragraph "C" of Article 1 of LCGCS.
Conclusion
Although annulment of Custom Circular No. 13982460 by GBACJ is acceptable in terms of form due to the authorities acting beyond their legal authority, but in terms of substance it is unacceptable due to the violation of regulations (Clause "b" of Article 122 of the Custom Affairs Law and Note 1 in Paragraph 3 of Article 2 of the Export and Import Regulations Law) and provision of an expanded interpretation of the added note to sub-paragraph "C" of Article 1 of LCGCS.
کلیدواژهها [English]
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