A Study On The Guarantee System Of Customs Affairs In The Crossing Of Public And Private Laws

Customs security is a legal system citing civil security by customs law makers so that civil laws can be filled to where customs law makers left blank. Before application, the feasibility, both in theory and practice, of civil theory, principle and systems adopted by customs law systems should be demonstrated. Only under that condition should the necessity of adoption be justified by pointing out the problems which exist in customs law systems.Once the feasibility and necessity are proved, it should be decided which parts of civil laws should be combined with customs law systems. This paper will focus on the topics of civil law systems introduced in the counterparts of customs law.Though academics are still debating whether customs law is an economic law or administrative law, it can be accepted that customs law is an administrative law by judging its subjects, methodology and its specific and unilateral exercise of power. Considering the function, application field and its base on public law debts, customs security can be defined as an instrument of administrative security.It is self-evident that civil relationships between and among parties exist long before administrative relationships established though the latter also base on debts which are described as special debts or public legal debts compared with civil debts. Customs law relationships are closely connected with civil actions and rights. For example, customs evaluation is based on recognizing transaction prices’ validity, customs broker system depends its availability on agency, and intellectual property protection by customs is in consistency with intellectual property law. The last example is customs security which is a combination of customs law and security.On the other hand, customs law boasts some systems quite different from civil law. Conflicts arise because of different laws regulating the same issue at the same time. The sharpest conflict encountered is that property protection rules have not been included in customs law while ownership and property rights are deeply rooted in civil law theories and principles. The concepts importer of import goods and exporter of export goods are created in customs law rather than introduce the concept owner of goods. Thus the importers and exporters are at one end of customs law relationships while customs is at the other end. However, this may deny the rights of owners of declare their interests and rights or filing law suits against customs when owners delegate others to import or export goods for them. Even B/L holders or property processor cannot be presumed to be importers or exporters. This results to negative attitudes to contracts relationships. Customs officers often take a partial fact as the whole story and require customs brokers taking extra responsibility. Rights of remedy and transaction relationships are hurt.Several causes result to the above situations. The first is more than enough emphasis taken by customs law makers on efficiency, the second is misunderstanding on the connection between procession and ownership, the third is intentions to applying laws in an easy way. These causes also confused customs law makers and officers when they want to improve the level of rule under law. The legislation on customs security which lasts over10years shows the trouble of denying rights of ownership and starts a new era of introducing civil thoughts at the same time.Considering the reality that customs law and civil laws are closely related at some times while conflict at other times, some civil thoughts need to be introduced to customs law system so that owners can receive more protection. Legal theories and principles tell us civil law and administrative law share the same aim of protecting rights; they reach their agreement at constitution law. Civil law experienced a long history and become perfect so that it can fill customs law deficiency. Some customs law systems such as customs security can share with civil law the existing systems. Consequently, legislation resources are saved and potential conflicts between and among different administration branches are prevented. The introduction of civil law thoughts is also supported by transformation of administrative law from strict controlling to partly negotiation and partly controlling.Legislations in other countries support the idea that fills administrative law deficiency with civil law. Like articles which allow judge apply civil law when administrative law is unavailable are prescribed both in French and German laws. Both civil suits and administrative litigations are heard in common law court in UK and US. All these countries practice demonstrated that it is feasible to fill administrative law deficiency with civil law.The most important thought need to be introduced is ownership protection. It will not impede application of customs law. Customs law regulates tariffs collecting and import and export controlling. It is widely accepted that taxes are public law debts and so do tariffs. Given the fact that tax or tariff payers are owners of property and goods, tax and tariffs are not ensured without ownership protection.Laws on customs controlling can be divided into two parts, one is anti-smuggling laws and regulations, the other part is rest laws and regulations on import and export supervision. As to smuggling cases, some of the smuggled goods, such as drugs, rare animal and plants or goods made of rare animal and plants which are forbidden to be traded, antiques, goods infringing others’ IP rights and wastes, are illegal to import and export even being declared in an usual procedure. Confiscation of these goods will not arise any legal debate. However, how to deal with the rest of smuggled goods which tariff should be levied if they are imported or exported in legal ways, should be discussed in details. It might be smuggled by someone rather than the owners with or without authorization and permission of owners, especially when some conduct is identified as smuggling just from its appearance, the owner is probably not involved and do not what has happened. For example, when a shipper carries goods without cargo manifest or with a wrong one and caught by customs, it will be viewed as a smuggling case. But very often, the owner of goods does not know the so-called smuggling. If a goods owner involves or permits shipper to smuggle his goods, the goods should be certainly confiscated. But if the owner is innocent, his ownership will still be legal. In accordance with the Administrative Punishment Law, only illegal property or gains can be confiscated. That is, in the latter circumstance mentioned above, the goods should not be confiscated, let alone the goods which are not be smuggled but the importer or exporter has some defect in dealing with customs procedures.It is demonstrated that protecting property rights will not impede customs works, not mention to indulge smuggling. In this respect, it is feasible to input the thought of property protection into the customs law application.As to customs security system, the feasibility to be guided with civil rights protection is also obvious. Compared with priority rights, customs security system boasts its advantages. Security can be applied to administrative legal relationship and strengthen customs power because customs security is in the same effect of civil security. Furthermore, deficiency in customs security system can be filled by civil law too.Prior to introduction of civil law thoughts to customs security, the thoughts, principles and main systems must be accepted and guide legislation, enforcement and interpretation of customs law. As the first step, ownership protection, bona fide acquisition and jus possidendi can be accepted.Jus in re should be recognized and accepted in customs security system. Security of mortgage and pledge, as they are applied in civil law, should be applied in customs security so that burden of principal can be mitigated. Rules on security period of time should be established and the relationship between customs security and judicial preservatory measure must be harmonized. Some rules obviously violating civil law principles, such as disposal of collateral without due process, need to be amended. Under coordination of civil security and customs security, both systems can be functioned well.The legislative body should authorize customs officers to apply civil law when meaning of customs law provisions are not clear or there is no relative regulations. The principle that customs power on security must be regulated by law should be established as the like principle established in civil law. Applying fields, security types, public summons, effecting, alteration and extinguishment of customs security must be expressly authorized and regulated by law. Public summons of customs security can be registered in the same summons system of civil security. In this way, the validity of customs security and civil security can be compared in the same system.Security system established in customs law inevitably throws light of civil law on customs law. The future of amendment of other customs law systems are seen, such as mitigate responsibility of customs brokers, smugglers take more responsibilities in person, harmonization on relations between customs power and civil rights, tax preservative power and civil security, business secrets and customs control.All in all, it is feasible to introduce civil thoughts into customs law systems both in theory and in practice. Its future is bright and the impact is profound.