Chen Weidong, Professor of the University of International Business and Economics
In order to promote the implementation of the Password Law of the People's Republic of China (hereinafter referred to as the Password Law), the newly revised Regulations on the Administration of Commercial Passwords (hereinafter referred to as the Regulations) have structurally reshaped the management system of commercial passwords, forming a more complete and scientific import and export management system. As an administrative regulation regulating the application and management of commercial passwords in China, the Regulations are not only an important part of China's password legal system, but also a special law of China's foreign trade legal system. The new changes in the import and export system meet the policy requirements of the 20th CPC National Congress on "promoting trade and investment liberalization and facilitation", and are of great significance for promoting greater prosperity and development of the commercial password market.
1、 The new changes in the import and export system of the Regulations empower the development of the commercial password market
The Regulations respond to the development needs and have the era value of promoting the development of the commercial password market. When the Regulations were formulated in 1999, the domestic commercial password market was just starting, and ensuring the security of password use in various fields such as politics, economy and diplomacy became an important goal of law making. With the development of the international and domestic market of commercial passwords, it is necessary to reform the import and export management system of commercial passwords. In order to implement Article 28 of the Password Law issued in 2019, Chapter V of the Regulations comprehensively revised the import and export rules of the Regulations in 1999 in the form of a special chapter, and made more specific provisions on the import license list, export control list, licensing conditions and procedures.
The import and export system of the Regulations is a typical reform result of implementing and promoting the development of the commercial password market. The "reform of the administrative approval system" and the "optimization of the business environment" have always run through the process of optimization and innovation of the commercial password system. Article 28 of the Password Law and Article 31 of Chapter V of the Regulations clearly stipulate that the commercial passwords used for mass consumer products are not subject to import licensing and export control. As a result, "mass consumer products" have gained broader free trade space.
The Regulations have a complete and scientific system, providing clear guidance for the import and export management of commercial passwords. Commercial passwords have been applied to every corner of ordinary people's lives. Cryptography technology plays an irreplaceable role in industrial production, infrastructure, information communication, financial payment, government services and other fields. Commercial password applications have achieved a qualitative and quantitative leap with the help of big data and Internet of Things technology. Standardizing the application of commercial passwords in the market system is crucial to guiding the construction of national security related information infrastructure, industry and value chain development. Commercial passwords are highly professional, and the professional problems involved in detection, authentication, and authentication need to be adjusted by a special standard of its own system, and also need to be jointly enforced by relevant departments. The principle of "taking free trade as the principle and taking import license and export control as the exception" established in Article 28 of the Password Law is of great significance for the maintenance of national security and social public interests. The Regulations further established the systems of list management, import and export license application, identification and challenge, A complete and scientific system of commercial password import licensing and export control has been established.
2、 Guided by the Regulations, promote the construction of compliance capacity of commercial password applications
Adhere to the overall national security concept, promote the application of commercial passwords under the security framework built by laws and regulations, and promote the prosperity and development of the commercial password market, which requires both accurate guidance from relevant responsible departments and strengthened implementation by market entities. The Regulations comprehensively revised the original import and export rules, which is an important starting point for the implementation of the Password Law in all sectors of society, and provides inspiration and guidance for enterprises and individuals to improve the compliance ability of commercial password applications.
Revelation 1: The import license and export control of commercial passwords shall be subject to list management. As for import, in principle, China does not need a license for commercial passwords, but only implements import license for a very small number. According to the list of import licenses for commercial passwords issued by the Ministry of Commerce, together with the State Password Administration and the General Administration of Customs, at present, China only implements import licenses for four types of commercial passwords: encrypted telephone sets, encrypted fax machines, high-performance encryption machines (password cards) and high-performance encryption VPN devices, and manages them as dual-use items. With regard to export, the scope of export control of commercial passwords should be broader. The list of export control of commercial passwords issued by the Ministry of Commerce in conjunction with the State Password Administration and the General Administration of Customs covers security chips, cipher machines (password cards), encryption VPN devices, key management products, special password devices, quantum cryptography devices, cryptographic analysis devices and other systems, equipment and components, As well as password development and production equipment, password testing and verification equipment, software and other testing, inspection and production equipment.
Revelation 2: Only commercial passwords under list management need to apply for import and export licenses. When the commercial password in the import license list of import commercial password or the commercial password in the export control list of export commercial password, the import and export license of commercial password shall be applied for. The materials submitted at the time of application include: the identity certificates of the legal representative of the applicant, the main business manager and the operator; A copy of the contract or agreement; Technical description of commercial passwords; End user and end use certificate, etc. These regulations clearly describe the licensing procedures and conditions under the list management, and provide clear guidance for relevant enterprises and individuals to carry out compliance work such as the preparation of application materials.
Enlightenment 3: An enterprise's understanding of the division of functions of the management department helps to improve its compliance capability. The import and export management of commercial passwords involves the competent commerce department of the State Council, the national password management department, the General Administration of Customs and other administrative departments. The competent commerce department of the State Council shall, within 45 working days from the date of accepting the application, examine the application together with the State Password Administration Department, and decide whether to grant the license or not according to law. It is worth noting that if the export of commercial passwords by enterprises and individuals has a significant impact on national security, social and public interests or foreign policy, special procedures will be applied, and the competent commerce department of the State Council, together with the State Password Administration Department and other relevant departments, will report to the State Council for approval, not subject to the 45 working day review time limit. Enterprises or individuals engaged in the import or export of commercial passwords under inventory management shall submit import and export licenses to the customs for inspection, and go through the customs declaration procedures in accordance with the relevant provisions of the State.
The compliance capacity building of commercial password application subjects runs through the import and export behavior under the list management. Enterprises and individuals understand the commercial password import and export management system from the aspects of list management scope, license application procedures, material preparation, acceptance departments, etc., which will help them improve their compliance efficiency and reduce compliance risks.
3、 Implement new regulations and systems to promote the orderly development of commercial password business
Commercial passwords are loaded with specific technologies, products and services, and are closely related to the development of digital economy, data platform, financial payment, public infrastructure, and e-government. The import and export management of commercial passwords, which is responsible for testing and authentication and electronic authentication, and the subsequent application to promote and market development, is an important part of escorting China's high-level socialist market economy system. As a supporting administrative regulation of the Password Law, the Regulations are a new achievement in promoting the legal administration of China's commercial password industry. The commercial password import and export management system shaped by the Regulations has an international perspective in line with international practices, reflects the organic combination of the overall national security concept and the needs of opening up and development, is conducive to the prosperity and development of commercial password cause and the equal protection of the interests of market subjects, and administers commercial passwords according to law The improvement of comprehensive service capability and further market opening provide institutional guarantee.
The import and export management of commercial passwords is a special law of China's foreign trade legal system. From this perspective, the import and export management of commercial passwords is also a part of China's foreign-related rule of law. The construction and improvement of this system will help the construction of foreign-related rule of law, comprehensively promote the domestic rule of law and foreign-related rule of law in the field of commercial passwords, and better safeguard national sovereignty, security and development interests. With the promulgation and implementation of the Regulations, China's commercial password import and export management capacity and governance level will be further improved, which will be conducive to the further prosperity and development of China's commercial password market under the new development pattern.
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