Principles of inspection, supervision and postponement of customs formalities in Vietnam

1. Principles of inspection, supervision and postponement of customs formalities

According to Article 73 of the Law on Customs 2014, amended by Point b, Clause 1, Article 2 of the Law on amendments to some articles of the law on intellectual property 2022, the principles of inspection, supervision and postponement of customs formalities are stipulated as follows:

- Holders of intellectual property rights protected in accordance with the law on intellectual property have the right to request customs authorities to apply inspection and supervision methods or postpone customs formalities for imported and exported goods showing signs of intellectual property right infringement.

- Customs authorities shall decide suspension of customs formalities for exports and imports when the intellectual property right holder or a legally authorized person files a petition, pays a sum or submit guarantee documents of a financial institution to ensure compensation for damage and costs incurred from the unconformable suspension of customs formalities.

The customs authority shall preemptively suspend the customs formalities if the customs authority, during customs inspection, supervision and control, has valid grounds to suspect that the exports or imports are intellectual property counterfeit goods

- Provisions on postponement of customs formalities for imported and exported goods showing signs of intellectual property right infringement as prescribed in this Law are not applicable to humanitarian aid goods, personal belongings, goods eligible for privileges and immunities, baggage, donations and gifts within the duty-free quota and transited goods.

Thus, according to the above regulations, the principle of temporarily suspending customs formalities for import and export goods related to intellectual property rights includes the following principles:

- Intellectual property rights holders have the right to request customs authorities to temporarily suspend customs formalities for goods suspected of infringing intellectual property rights.

- Customs authorities can temporarily suspend customs formalities upon a valid request from the intellectual property rights holder.

- Customs authorities can proactively suspend customs formalities if they detect goods suspected of being counterfeit intellectual property.

- The above regulations do not apply to some special cases such as humanitarian aid, luggage, gifts...

2. What are the procedures for postponement of customs formalities in Vietnam?

According to Article 76 of the Law on Customs 2014, the procedures for postponement of customs formalities are as follows:

(1) Procedures for postponement of customs formalities for requesters whose inspection and supervision requests are accepted by customs authorities shall be carried out as follows:

- When detecting shipments which show signs of intellectual property right infringement, the customs authority shall postpone customs formalities and promptly notify such in writing to the requester;

- Within 3 working days after receiving the customs authority’s notice, if the requester does not require postponement of customs formalities, the customs authority shall continue carrying out customs formalities under regulations.

In case the requester requires postponement and pays a deposit and submits a document on guarantee as prescribed in Clause 3, Article 74 of the Law on Customs 2014, the customs authority shall decide to postpone customs formalities.

(2) In case intellectual property rights holders make requests for postponement of customs formalities for goods showing signs of intellectual property right infringement but make no written request for customs inspection and supervision, customs authorities shall decide to postpone customs formalities if the requirements prescribed in Clause 3, Article 74 of the Law on Customs 2014 are satisfied.

(3) The time limit for postponement of customs formalities is 10 working days from the day on which the customs authority issues the decision.

In case the requester has a plausible reason for postponement, this time limit may be extended but must not exceed 20 working days, provided the requester pays an additional sum of money or submits an additional document on guarantee as prescribed in Clause 3, Article 74 of the Law on Customs 2014.

(4) Upon expiration of the postponement duration as prescribed in Clause 3 of Article 76 of the Law on Customs 2014, if the requester for postponement of customs formalities initiates no civil lawsuit and the customs authority decides not to handle the case according to formalities for handling of administrative violations, the customs authority shall continue carrying out customs formalities for the shipment.

In case the requester for postponement of customs formalities withdraws the request and the customs authority decides not to handle the case according to formalities for handling of administrative violations before the expiration of the temporary suspension duration, the customs authority shall immediately continue carrying out customs formalities for the shipment.

(5) Intellectual property rights holders or legally authorized persons shall pay to goods owners arising expenses for warehousing, loading, unloading and preservation of goods due to wrong requests for postponement of customs formalities.

(6) Customs authorities shall refund security amounts to intellectual property rights holders or legally authorized persons after the latter have fulfilled their obligation to pay arising expenses and damage compensations under decisions of customs authorities or competent agencies.

(7) The time limit for tax payment (if any) is determined from the day on which the customs authority decides to continue carrying out customs formalities for the shipment.

Thus, procedures for temporary suspension of customs formalities for import and export goods related to intellectual property rights are carried out as follows:

- The customs authority will notify the requester when detecting goods suspected of infringing intellectual property rights.

- Within 3 days of receiving the notice, if the requester does not request a temporary suspension, the customs authority will continue to carry out normal customs formalities.

- If the requester requests a temporary suspension in writing and pays a security deposit, the customs authority will issue a decision to temporarily suspend the procedure.

- The suspension period is 10 working days and can be extended, but not exceeding 20 days.

- After the deadline expires, if there is no lawsuit or administrative penalty, the customs authority will continue the procedure for the goods.

- The person requesting the suspension must bear the costs incurred and receive a refund of the deposit after fulfilling the payment obligation.

- The tax payment deadline is calculated from the date of the decision to continue customs formalities.

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