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Agreement between the Government of Canada and the Government of the Republic of Korea for Mutual Assistance concerning Customs Co-operation [1986] CATSer 21 (3 July 1986)

E100808 - CTS 1986 No. 18

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF KOREA FOR MUTUAL ASSISTANCE CONCERNING CUSTOMS CO-OPERATION

The Government of Canada and the Government of the Republic of Korea,

CONSIDERING that offences against customs laws are prejudicial to the economic, fiscal, social and cultural interests of, as well as detrimental to the legitimate interests of trade, industry and commerce within their respective countries,

CONSIDERING the importance of the accurate assessment of duties and taxes imposed on imported or exported goods,

CONVINCED that greater co-operation between their Customs Administrations can make their actions, including those in the area of customs offences, more effective,

HAVING REGARD to the Recommendation of the Customs Co-operation Council on Mutual Administrative Assistance of December 5, 1953,

HAVE AGREED as follows:

ARTICLE 1

Definitions

For the purpose of this Agreement,

(a) "Customs Administration" means in Canada, the Department of National Revenue (Customs and Excise), and, in the Republic of Korea, the Office of Customs Administration;

(b) "customs laws" means the laws and regulations relating to the importation, exportation and transportation of goods across national boundaries, and all other laws and regulations enforced or administered by the respective Customs Administrations; and

(c) "offence" means any violation or attempted violation of customs laws.

ARTICLE 2

Scope of Agreement

1. Subject to the laws of the respective Contracting Parties, the Contracting Parties through their Customs Administrations shall, in accordance with the provisions of this Agreement,

(a) assist each other in the prevention, investigation and repression of offences;

(b) upon request, assist each other by providing information to be used in administering and enforcing the customs laws; and

(c) endeavour to co-operate in the research, development and testing of new systems and procedures, in the training and exchange of personnel, in harmonizing documentation and in other matters that may from time to time require their joint efforts.

2. The assistance mentioned in paragraphs 1(a) and (b) shall be provided for use in all proceedings, whether judicial, administrative or investigative.

3. The Contracting Parties may provide assistance pursuant to other agreements, arrangements or practices that are in effect between the Contracting Parties.

ARTICLE 3

Obligation to Observe Confidentiality

1. Inquiries, information, documents and other communications received by the Customs Administration of either Contracting Party under this Agreement shall be treated as confidential and shall be granted the protection from disclosure provided under the law of the receiving Contracting Party with regard to such information.

2. Information, documents and other communications made available under this Agreement shall not be used for purposes other than those specified in this Agreement, except with the written consent of the Customs Administration providing the information, documents and other communications.

ARTICLE 4

Exemption from the Obligation to Provide Assistance

1. Where the Customs Administration whose assistance is requested is of the opinion that compliance with a request is likely to be detrimental to its national sovereignty or security, public policy or other important interests of its country, it may decline to provide its assistance in whole or in part, or may stipulate that its provision of assistance shall be dependent upon the fulfillment of certain conditions or requirements.

2. Where a request is made for assistance that the requesting Customs Administration itself would be unable to provide, the requesting Customs Administration shall draw attention to this fact in its request. Compliance with such a request shall be within the discretion of the Customs Administration whose assistance is requested.

ARTICLE 5

Form and Substance of a Request for Assistance

1. Subject to paragraph 3 of this Article, a request shall be made in writing and shall be accompanied by all documents necessary for responding to the request.

2. A request shall include the following information:

(a) the identity of the authority making the request;

(b) the nature of the proceedings in respect of which the request is made;

(c) the object of and the reason for the request;

(d) the names and addresses of the parties to whom the request relates, if known; and

(e) a brief description of the subject of the request and the legal issues involved.

3. Urgent requests may be made by telecommunication, but oral requests shall, upon request, be confirmed in writing without delay.

ARTICLE 6

Channel of Communication

Information relating to all matters under this Agreement shall be communicated between officials designated by the Deputy Minister of National Revenue (Customs and Excise) and by the Commissioner of the Office of Customs Administration.

ARTICLE 7

Response to Requests

1. The Customs Administration of the assisting Contracting Party shall carry out all official measures necessary to respond to the request, and shall endeavour to seek any legal action necessary to carry out the request.

2. The Customs Administration of either Contracting Party shall, upon the request of the Customs Administration of the other Contracting Party, conduct any necessary investigation, including the interviewing of persons suspected of having committed an offence, as well as of experts and witnesses.

3. The Customs Administration of either Contracting Party shall, upon the request of the Customs Administration of the other Contracting Party, attempt to gather and verify information and make inspections relating to matters referred to in Article 2, 1.(a) and (b).

4. The Customs Administration of the assisting Contracting Party shall comply with a request to follow a certain procedure in responding to a request, unless that procedure would conflict with the policy or normal practice of the assisting Contracting Party, in which event, compliance with such a request shall be within the discretion of the assisting Contracting Party.

5. The Customs Administration of the assisting Contracting Party shall, when possible, comply with a request that a representative of the requesting Contracting Party be present when a requested action is carried out.

6. The Customs Administration of the requesting Contracting Party shall, if it so requests, be advised of the time and place of the action to be taken in response to its request.

7. Where the Customs Administration of the receiving Contracting Party cannot comply with a request, it shall promptly notify the Customs Administration of the requesting Contracting Party of that fact and the reasons therefor, and shall inform the Customs Administration of the requesting Contracting Party of any information that might be helpful in pursuing the matter further.

8. Where the Customs Administration of the receiving Contracting Party is not the appropriate agency to respond to a request, it shall transmit the request to the appropriate agency, and shall notify the Customs Administration of the requesting Contracting Party of its action.

ARTICLE 8

Documents and other Materials

1. Upon the request of either Contracting Party, the other Contracting Party shall, subject to the constraints of domestic law and policy, produce such files, documents or other materials or authenticated copies thereof as may be considered essential for proceedings in the territory of the other Contracting Party. Originals of files, documents or other materials which have been transmitted shall be returned at the earliest opportunity. Rights of the requested party or of third parties remain unaffected.

2. Original documents shall be provided only in cases where copies would be insufficient.

ARTICLE 9

Costs

Expenses incurred by the assisting Customs Administration in carrying out a request under this Agreement shall be borne by that Customs Administration.

ARTICLE 10

Exchange of Information

1. The Customs Administrations of the two Contracting Parties shall communicate to each other,

(a) on their own initiative and without delay, any available information relating to:

(i) activities that may result in the commission of an offence that could involve substantial damage to the economy, public health, public security, or any other vital interest of the other Contracting Party;

(ii) enforcement actions that might be useful to suppress offences and, in particular, special means of combating offences;

(iii) new methods used in committing offences;

(iv) observations and findings resulting from the successful application of new enforcement aids and techniques; and techniques and improved methods for processing passengers and cargo.

(b) upon request and without delay, information relating to:

(i) activities that may result in the commission of an offence in the territory of the other Contracting Party;

(ii) whether goods exported from the territory of one Contracting Party have been lawfully imported into the territory of the other Contracting Party and the customs procedure used for clearing the goods;

(iii) the movement of goods, vessels, vehicles, and aircraft between the territory of the Contracting Parties.

2. The Customs Administrations of the two Contracting Parties, for the purpose of aiding, within the scope of their respective mandate in the suppression of illicit traffic in narcotics and psychotropic substances, will communicate to each other to the extent possible, on their own initiative and without delay, all information regarding possible violations of the customs laws of the other Contracting Party.

ARTICLE 11

Surveillance of Conveyances, Goods and Persons

The Customs Administration of one Contracting Party shall, at the request of the Customs Administration of the other Contracting Party, to the extent of its ability, exercise special surveillance over:

(a) the means of transportation suspected of being used to carry out offences within the territory of the requesting Contracting Party;

(b) goods designated by the requesting Contracting Party as being the object of an extensive clandestine trade destined for the country of the requesting Contracting Party; and

(c) persons known to be, or suspected by the requesting Contracting Party of being, engaged in the commission of an offence.

ARTICLE 12

Exchange of Personnel

The Customs Administrations of the Contracting Parties may exchange personnel, when mutually beneficial, for the purpose of advancing their understanding of each other's procedures and techniques.

ARTICLE 13

Harmonization of Documentation

The Customs Administrations of the Contracting Parties may, in order to maximize the benefits to be derived from their co-operative efforts, endeavour to harmonize their documents, except in cases where the Contracting Parties agree that harmonization would be unduly disruptive.

ARTICLE 14

Implementation of the Agreement

1. The Deputy Minister of National Revenue (Customs and Excise) and the Commissioner of the Office of Customs Administration shall issue any administrative directives necessary for implementation of this Agreement.

2. The Contracting Parties shall endeavour by mutual accord to resolve any problems or doubts arising from the interpretation or application of this Agreement.

ARTICLE 15

Application

This Agreement shall apply to the territory to which the customs laws of Canada apply and to the territory to which the customs laws of the Republic of Korea apply.

ARTICLE 16

Entry into Force, Review and Termination

1. This Agreement shall enter into force following an exchange of diplomatic notes in which the Contracting Parties notify each other of the completion of any procedures required by their national law for giving effect to this Agreement.

2. The Contracting Parties agree to meet in order to review this Agreement at the end of three years from the date of its entry into force, unless they notify each other in writing that no review is necessary.

3. This Agreement may be terminated by either Contracting Party on six months notice in writing to the other Contracting Party.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

DONE at Seoul, this 1st day of July, 1986 in duplicate, in the English, French and Korean languages, the three texts being equally authentic.

Reginald H. Dorrett

FOR THE GOVERNMENT OF CANADA

Lee-Won-Kyong

FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA