低开出口发票行为处罚暂行办法

部长：薄熙来
署长：牟新生
局长：谢旭人

January 10,2006

二○○六年一月十日

Temporary Punishment Measures on Behaviour of Writing Export Invoice at a Lower Price

低开出口发票行为处罚暂行办法

Article 1 For the purposes of regulating foreign trade order, safeguarding foreign trade interests of the state, these measures are worked out in accordance with Foreign Trade Law of the People's Republic of China, Administrative Punishment Law and other corresponding laws and regulations.

第一条 为规范对外贸易秩序，维护国家对外贸易利益，根据《中华人民共和国对外贸易法》、《行政处罚法》和其他相关法律法规，制定本办法。

Article 2 Export invoice may be divided into export invoice made by supervision and made by oneself. Export invoice made by supervision means the export invoice uniformly printed, supervised and managed by every local taxation department. The export invoice made by oneself means the export invoice printed by foreign trade managers themselves.

第二条 出口发票可分为监制出口发票和自制出口发票。监制出口发票是指由各地税务部门统一印制和监管的出口发票；自制出口发票是指对外贸易经营者自行打印的出口发票。

Article 3 “Writing export invoice at a lower price in terms of these measures means while foreign trade managers are engaged in foreign trade business, price written on the export invoice made by themselves provided to the importers is lower than the price on the invoice provided during export declaration at the customs.

第三条 本办法所指的“低开出口发票”是指对外贸易经营者在对外贸易中，向进口商提供的自制出口发票的票面价值低于出口报关时所提供发票票面价值的行为。

Article 4 Ministry of Commerce will make investigation together with State Administration of Taxation and the General Administration of the Customs will give cooperation under following circumstances,

第四条 在出现以下情况时，商务部会同税务总局进行调查，海关总署予以配合：

.1.informant about domestic enterprises or organizations of corresponding industry being suspected of writing export invoice at a lower price;

1、国内企业、相关行业组织等关于涉嫌存在低开出口发票行为的举报；

2. circular on the behavior suspected of writing export invoice at a lower price put forward formerly by corresponding government department of an import country;

2、进口国相关政府部门正式提出的关于涉嫌存在低开出口发票行为的通报；

3. behaviour of foreign trade managers being suspected of writing export invoice at a lower price found through the cooperation with the customs;

3、通过海关互助合作，发现对外贸易经营者涉嫌存在低开出口发票的行为；

4. Informants about other behaviours of writing export invoice at a lower price.

4、其他关于涉嫌低开出口发票行为的举报。

Article 5 Ministry of Commerce should make preliminary examination on the request for investigation within 10 days at receipt of the request for investigation. According to the examination, to the behaviour harmful to foreign trade order and interests of the state, Ministry of Commerce will transfer the materials to the General Administration of the Customs. The General Administration of the Customs will check whether the export invoice is written at a lower price and transfer the result to Ministry of Commerce within 50 days at receipt of the materials transferred by the Ministry of Commerce.

第五条 商务部在接到调查请求之日起10日内，对调查请求情况进行初步审核。根据审核结果，对于危害国家对外贸易秩序和对外贸易利益的，将有关材料移交海关总署，海关总署在接到商务部移交材料起50日内将对是否存在涉嫌低开出口发票行为进行核对，并将核对结果移交商务部。

To the behaviour that is preliminary confirmed to be suspected of writing export invoice at a lower price, Ministry of Commerce will transfer the materials to State Administration of Taxation within 10 days at receipt of the check result made by General Administration of the Customs. State Administration of Taxation should make investigation that whether the foreign trade managers are suspected of writing export invoice at a lower price and transfer the investigation result to the Ministry of Commerce within 50 days at receipt of the materials transferred by the Ministry of Commerce. It is not restricted by this to the behaviour that is suspected of evading taxes by cheating and need to be send to the investigation organs for starting an investigation. To the behaviour that is confirmed preliminarily not being suspected of writing export invoice at a lower price, Ministry of Commerce will stop investigation on it.

商务部在接到海关总署核对结果之日起10日内，对初步认定存在涉嫌低开出口发票行为事实的，将有关材料移交税务总局；税务总局在接到商务部移交材料起50日内对对外贸易经营者是否从事该涉嫌低开出口发票行为进行调查并将调查结果移交商务部，但凡涉嫌偷逃骗税需移送稽查部门立案调查的，不受此限。对初步认定不存在涉嫌低开出口发票行为事实的，商务部应终止调查。

According to above investigation, if Ministry of Commerce confirmed that the export invoice was written at a lower price, it should make a preliminary decision on the behaviour of writing export invoice at a lower price in accordance with laws within 15 days at receipt of the investigation result made by the State Administration of Taxation and deliver the written document about the decision to the corresponding foreign trade manager within 10 days. To the behaviour that is confirmed not being suspected of writing export invoice at a lower price, Ministry of Commerce should stop investigation on it.

根据上述调查结果，商务部在确认存在低开出口发票行为时，自收到税务总局的调查结果之日起15日内依法对低开出口发票行为进行初步裁定，并将裁定结果在10日内书面送达相关对外贸易经营者；对确认不存在低开出口发票行为的，商务部应终止调查。

Article 6 Within 7 days at delivery of the preliminary decision to the corresponding foreign trade manager, corresponding foreign trade manager may submit written application materials to the Ministry of Commerce and make an application for a hearing for any disagreement.

第六条 在初步裁定送达相关对外贸易经营者之日起7日内，相关对外贸易经营者如有异议可向商务部提交书面申辩材料，并可提出听证申请。

Article 7 Ministry of Commerce should give a hearing on the punishment on corresponding foreign trade manager's behaviour of writing export invoice at a lower price in accordance with the provisions of Administrative Punishment Law.

第七条 商务部对相关对外贸易经营者低开出口发票行为的处罚进行听证的，应当遵照《行政处罚法》的规定。

Article 8 Within 50 days at the date of preliminary decision, Ministry of Commerce will make final decision on the foreign trade manager's behaviour of being suspected of writing export invoice at a lower price.

第八条 自初步裁定做出之日起50日内，由商务部对相关对外贸易经营者的涉嫌低开出口发票行为进行最终裁定。

Article 9 To the foreign trade manager who wrote export invoice at a lower price for the first time, Ministry of Commerce will give him a warning in accordance with related provisions of Administrative Punishment Law. To the enterprises that did it again 2 year after the first warning, a fine of less than 30,000 yuan may be imposed besides being given a warning. If above behaviour of violating the law exerted a bad influence to foreign trade order, the enterprise violating the law should be prohibited to be engaged in foreign trade business for more than 1 year and less than 3 years in light of the circumstances. The enterprise's legal representative holding major responsibility should be prohibited to be legal representative for foreign trade enterprise for more than 1 year and less than 3 years in light of the circumstances.

第九条 对存在低开出口发票行为的对外贸易经营者，商务部依据《行政处罚法》的有关规定，对初次违反的企业予以警告；对第一次警告后2年内再次违反的企业除予以警告外，可以并处3万元人民币以下的罚款；以上违法行为，对外贸经营秩序造成严重影响的，可视其情节，给予违法企业禁止其在1年以上3年以下期限内从事有关对外贸易经营活动的处罚。 对于负有主要责任的企业法定代表人，可视情节，禁止其在1年以上3年以下期限内担任外贸企业法定代表人。

Above punishments will be announced in accordance with Foreign Trade Law and corresponding regulations. 

 以上处罚，将依据《对外贸易法》及相关规定进行公告。

The administrative punishment decision letter should be delivered to corresponding foreign trade managers within 7 days at the date when the punishment decision is made.

行政处罚决定书应自行政处罚做出之日起7日内送达相关对外贸易经营者。

Article 10 If there is any disagreement with the administrative punishment listed in Article 9, the person concerned may apply for an administrative review in accordance with laws or bring a lawsuit to the People's Court in accordance with laws.

第十条 当事人对第九条所列行政处罚不服的，可以依法申请行政复议，也可以依法向人民法院提起诉讼。

Article 11 Relative unit and individual should cooperate with and assist in the investigation made by the Ministry of Commerce, General Administration of the Customs and State Administration of Taxation.

第十一条 有关单位和个人应当对商务部、海关总署和税务总局的相关调查给予配合、协助。

Ministry of Commerce, General Administration of the Customs and State Administration of Taxation should maintain secrecy about state and commercial secret known during the investigation.

商务部、海关总署和税务总局对调查中知悉的国家秘密和商业秘密负有保密义务。

The investigators of Ministry of Commerce, General Administration of the Customs and State Administration of Taxation should abide by corresponding laws, regulations and rules of the state during the investigation.

商务部、海关总署和税务总局的调查人员在调查过程中应该遵守国家相关的法律、法规和规章。

Article 12 During the investigation, if any foreign trade manager was found to be suspected of writing export invoice at a lower price, State Administration of Taxation will make an investigation on him and punish him in accordance with related provisions of Measures on Invoice Management of the People's Republic of China. Punishment should be given by the customs on any behaviour of smuggling and violating the regulations of customs supervision in accordance with the provisions of Customs Law of the People's Republic of China and Implementation Regulations for Administrative Punishment of the Customs of the People's Republic of China.

第十二条 在调查过程中，如发现对外贸易经营者涉嫌低开监制出口发票的行为，由税务总局依据《中华人民共和国发票管理办法》的有关规定进行调查和处罚。如发现有走私及违反海关监管规定的行为的，由海关依据《中华人民共和国海关法》及《中华人民共和国海关行政处罚实施条例》的规定进行处罚。

Article 13 The days for the investigation procedure in terms of these measures means working days.

第十三条 本办法中调查程序的日期均指工作日。

Article 14 The interpretation of these measures are vested in Ministry of Commerce, General Administration of the Customs and State Administration of Taxation.

第十四条 本办法由商务部、海关总署和税务总局负责解释。

Article 15 These measures shall go into effect 3 months after the promulgation of these measures.

第十五条 本办法自发布之日起3个月后施行