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国务院关于坚决打击骗取出口退税严厉惩治金融和财税领域违法乱纪行为的决定 DECISION OF THE STATE COUNCIL ON CRACKING DOWN ON FRAUDS OF TAX REFUNDS FOR EXPORT AND PUNISHING ACTS VIOLATING LAW AND DISCIPLINE IN FINANCIAL AND TAX FIELDS

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国发(1996)4号
(January 21, 1996)
颁布日期:19960121  实施日期:19960121  颁布单位:国务院

  For recent two years, a series of policies and measures of the central authority on strengthening and improving macro regulation have been enforced and have achieved obvious effect, the economic order continues to take a turn for the better. However, with the deep going development of the struggle of rectifying the economic order and fighting against unlawful and criminal activities, some quite serious problems in financial and tax fields are also exposed. For examples, some enterprises in collusion with the fraud groups cheat out of tax refunds for export and illegally buy foreign currency; some financial institutions make “two accounts” to conceal the deposit or issue loans against the provisions; some local governments without authorization change the budgetary funds into extra-budgetary funds to escape from the budget supervision, etc. These problems have become very serious at some places and units. Therefore, the State Council decides to take resolute measures to crack down on and punish frauds of tax refunds for export and acts violating law and discipline in financial and tax fields, and carry out strict provisions of control and supervision.

  1. Arranging a special struggle to develop comprehensive inspection and to investigate and punish a set of major and important cases

  (1) The State Administration for Taxation shall jointly with the relevant departments carry out a special struggle against the fraud activities of taxes, and investigate and punish a set of typical cases. The departments of tax, foreign economic relation and trade, customs, banking, foreign currency control, public security, auditing, administration for industry and commerce and administrative supervisory agency shall cooperate tightly, based on the clues in hand, to organize and develop special struggles directly against fraud of tax, fraudulent purchase of foreign currency and smuggling, especially to investigate and punish all kinds of unlawful and criminal activities of fraud of tax, fraudulent purchase of foreign currency and smuggling by making false customs declaration form, false invoice and false settlement document of exchange. Every competent department shall send inspection group periodically to inspect indifferent places.

  (2) The People's Bank of China shall make an overall check-up on non-bank financial institutions and ban the illegally established financial institutions; it shall carry out on-the-spot audit on the capital resource and operation of commercial banks and completely check the problems such as operation out of account, short sale of securities, malicious overdraw of credit card and confused control of certificate of deposit.

  (3) The Ministry of Finance shall take a comprehensive inspection on the establishment and management of extra-budgetary funds, and take a complete check-up on the cases like transferring the budgetary revenue into extra-budgetary funds and not bringing it into budgetary management against the relevant provisions, or expanding the collection scope of the extra-budgetary funds, raising the collection standards and squandering the extra-budgetary funds.

  (4) The leadership of the special struggle shall be strengthened. The major leaders of the people's government of province, autonomous region or municipality directly under the central government and the competent departments of the State Council shall take charge by themselves. All relevant departments shall according to their duties stress the essentials and cooperate tightly. All localities and departments shall strengthen the support to the work of the procuratorial organ. All relevant departments and procuratorial organs shall set up the working system of case transmission and put an end to substituting administrative punishment for criminal penalty.

  (5) All acts violating law and discipline in the above-said fields shall be investigated and punished through developing the special struggle and comprehensive inspection. Those who have violated law and discipline concerning fraud, corruption, accepting a bribe, offering a bribe or dereliction of duty shall be transmitted to the judicial department for criminal responsibilities according to the law. When the cases of violations of law and discipline are dealt with, the bounds of policy shall be grasped. Those who can self-check actively and confess themselves may be punished leniently; those who commit a crime or an offense against this Decision after its promulgation shall be punished severely for all.

  2. Strictly investigating and punishing acts violating law and discipline according to the law and discipline

  (1) Decision of the Standing Committee of the National People's Congress on Punishing the Crime of Falsifying, Counterfeiting and Illegal Selling of Invoices for Value-added Tax shall be carried out strictly to investigate and punish severely the fraud activities of tax. If any enterprise or institution is engaged in or take part in tax fraud or tax evasion, including falsifying the invoices for value-added tax and evading paying tax by taking the few as the more, exaggerating the price, counterfeiting or falsely declaring the export, or taking the more as the few or posing as donation during importation, once these are found, the person directly responsible shall be discharged from public employment and the relevant person in charge shall be discharged from his post; according to the law and judicial interpretation, all those who defraud or evade tax payment more than 10,000 yuan shall be transmitted to judicial department for criminal responsibility according to the law. If the person responsible and business personnel of the enterprise or institution intentionally commit fraud of tax refunds for export for the interest of his own unit, he shall be punished for the crime of fraud or the crime of fraud of tax refunds for export. If an enterprise commits fraud of tax refunds for export and the circumstances are serious, its tax refunds for export shall be suspended and its license for foreign trade operation shall be revoked by the department of economic relation and trade. If the personnel of the government agency causes a loss to the state revenue more than 50,000 yuan for his dereliction of duty, the person directly responsible shall be imposed upon disciplinary sanction no less lenient than record of a demerit, up to discharge from public employment; the relevant person in charge shall be imposed upon disciplinary sanction no less lenient than record of a demerit, up to discharge from his post; all those who take part in fraud activities of tax or cause substantial loss to the state revenue for his dereliction of duty which constitutes a crime shall be transmitted to judicial department for filing of the case and shall be investigated for criminal responsibility according to the law. If the amount involved in the tax fraud is especially huge, the circumstances are especially serious and the state has therefore suffered especially heavy losses, the offender shall be subject to severe and strict punishment according to the relevant decisions by the Standing Committee of the National People's Congress.

  (2) The Decision of the Standing Committee of the National People's Congress on Punishment of the Crimes of Undermining the Financial Order and the relevant laws shall be strictly carried out to crack down on illegal acts and crimes in the financial field. If a financial institution, for the purpose of escaping from the control of the credit scale, fails to bring the saving and borrowing business of its sub-company or relevant business departments into unified accounting and report to a high body, these business shall be audited and brought into the unified accounting and the person in charge and the person directly responsible shall be imposed upon disciplinary sanctions according to circumstances and extent of danger. If a financial institution violates the Accounting Law of the People's Republic of China to set up an other account out of the account and run the business against the regulations, the chief person in charge shall bed is charged from his post up to discharged from the public employment; if the circumstances are serious, heavy losses have been caused and a crime has been constituted, the chief person in charge shall be investigated for criminal responsibility according to the law, and the person in charge of higher authority shall be punished up to discharge from post; if a local government instigates or obliges a financial institution to set up another account out of the account and run the business against the regulations, the relevant leaders of the local government shall be investigated and punished up to discharge from post. If the management in a financial institution is in slack, a major incident or several incidents have happened and heavy losses have been caused, the chief person in charge shall be discharged from his post; if the personnel of a financial institution ignores his duty and a crime has been constituted, he shall be transmitted to the judicial department for criminal responsibility according to the law. If financial institutions collude with each other from both inside and outside to be engaged in or take part in illegal acts and crimes in the financial field, they shall be punished strictly and the relevant person in charge shall be investigated and punished.

  (3) If a designated foreign currency bank against the provisions sells foreign currency without certificate, the person directly responsible shall be imposed upon disciplinary sanctions: a. if the sale of foreign currency is decided by the person handling the transaction, he shall be imposed upon disciplinary sanctions and transferred from his post up to discharged from the public employment; if the unit without certificate sells foreign currency totally more than 1,000,000 US dollars, the relevant person in charge shall be investigated and punished. b. if it is the person in charge of the unit who approves or incites the person handling the transaction to sell foreign currency without certificate, the person directly responsible shall be imposed upon disciplinary sanctions and the relevant person in charge shall be investigated and punished no less lenient than record of demerit up to discharge from post; c. if the leader of a local government requires the bank to sell foreign currency without certificate, the bank personnel shall be dealt with and the relevant leader of the government shall be investigated and punished no less lenient than record of demerit up to discharge from post.

  The person in charge of a unit and the person directly responsible who are engaged in or take part in arbitrage of foreign currency shall be dealt with in the light of the above-said measures. If an enterprise or institution unlawfully commits arbitrage of foreign currency totally more than 1,000,000 US dollars, the designated foreign currency bank shall stop selling foreign currency to it and the department of foreign economic relation and trade shall revoke its operation license for foreign trade.

  If any of the above-said activities constitutes a crime, it shall be transmitted to judicial department for criminal responsibility according to the law.

  (4) If anyone conceals the budget revenue or transforms the budgetary funds into extra-budgetary funds, all the unlawful income shall be handed over to the higher financial department. Besides, leaders of relevant departments and the government at the same level shall be investigated and punished; if the circumstances are serious, they shall be demoted up to discharge from post; if they commit a crime for dereliction of duty, they shall be transferred to judicial department for criminal responsibility according to the law.

  (5) Those enterprises and individuals who unlawfully carve the seals or print the notes or certificates shall be punished strictly.

  (6) As to those major cases which involve different provinces, autonomous regions or municipalities directly under the central government, the departments of public security and judicial affairs shall strengthen the leadership and deal with the cases in unified coordination.

  3. Strengthening the management and supervision system to stop up the loophole of crimes

  (1) Besides further improving the export tax policy, the departments of taxation, banking, customs, foreign economic relation and trade and foreign currency control shall, according to the relevant provisions of the State Council, take the effective measures to set up a working system for constant and close connection in order to strengthen the examination and management of the receipts of tax refunds for export and prevent lawless persons from counterfeiting receipts to commit tax fraud. The tax department shall strengthen the management and audit of value-added tax invoices, continue to distribute the value-added tax invoices within the limited quantity and manage the invoice of huge denomination by making out it on the computer system. The competent department of tax refund for export shall make the pre-examination strictly and set up a cross audit system of computer network.

  (2) The Law of the People's Republic of China on the People's bank shall be carried out seriously. The people's bank at different level shall concentrate on bettering the financial management and supervision. The banking industry shall be operated separately from the industry of securities, trust and insurance and shall be managed according to the law. The non-banking institutions shall be re-examined, re-issued of certificate and re-registered. The state-owned commercial banks shall, according to the requirements of the Circular of the State Council Concerning the Approval and Transmission of the Suggestions of the Chinese People's Bank on Disjointing the Chinese Industrial and Commercial Bank and Three Other Banks with Subsidiary Trust and Investment Companies (Document Guofa No.(1995)11 of the State Council),seriously better the disjointing work with subsidiary trust and investment companies, and make a comprehensive audit on its subsidiary department of trust, securities, international business, credit card and real estate loans in order to prevent operation out of the account. The computer monitoring system of all kinds of business of financial institutions shall be set up in the line of the People's Bank of China. All financial institutions shall strengthen the inspection And audit on their branches, set up the system of personnel exchange, the system of regular audit within the tenure and the system of audit when leaving office.

  The People's Bank of China shall jointly with the Ministry of Finance and the Securities Supervisory and Regulatory Commission of China formulate the regulatory provisions for securities re-purchase as soon as possible to take strict standardized management on the re-purchase business of securities. Any inter-bank deposit in name of re-purchase of securities against the regulations shall be banned. Effective measures shall be taken to completely clear up the activities against regulations in the securities re-purchase.

  (3) The competent department of foreign currency control shall, according to the requirements of the Circular of the State Council on Further Reforming the Foreign Currency Control System (Document Guofa No.(1993) 89 of the State Council), further strengthen the supervision, inspection and management on the designated banks of foreign currency. All designated banks of foreign currency shall strictly carry out the provisions concerning settlement and sale of foreign currency and account opening or saving and borrowing. The competent department of foreign currency control shall setup constant and close connection with the designated banks of foreign currency, customs and taxation department to prohibit arbitrage of foreign currency.

  (4) The Budget Law of the People's Republic of China and the Audit Law of the People's Republic of China shall be carried out strictly. The management of financial budgetary funds and extra-budgetary funds shall be seriously strengthened according to the relevant provisions of the State Council. Besides that the internal supervision and management of the finance department shall be strengthened, the external supervision and restriction role of the department of audit and supervision shall be played. In particular, the audit supervision on the lower finance department by the higher finance department shall be strengthened. The management on the financial turnover capital shall be strengthened strictly according to the principle of controlling scale, limiting investment direction, completing the system and strengthening the supervision.

  (5) The department of public security and the department of administration for industry and commerce shall rectify the special businesses such as seal carving and notes and certificates printing and shall hold strict control thereon.

  (6) The personnel of the departments of finance, banking, taxation, foreign economic relation and trade, customs, foreign currency control and administration for industry and commerce shall pay great attention to ideological education to enhance their quality, heighten the sense of legality and increasing the awareness of precaution. The unfit personnel shall be promptly discharged from the important post.

  (7) The people's government of province, autonomous region and municipality directly under the central government shall take the forceful organizational measures to carry out this Decision. The relevant department under the State Council shall, according to this Decision, formulate the detailed enforcement provisions respectively as soon as possible.

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