A Study On Customs Affairs Guarantee

This study employs comparative and pragmatic approaches to analyze thesubstantive regulations and routine regulations of customs affairs guarantee. On thebasis of regulation analysis, this study digs into the basic theory of customs affairsguarantee, offering insights into customs affairs guarantee from the perspectives ofstrict customs inspection，convenient customs pass, efficient finance and goods flow.Assuring the public law nature of customs affairs guarantee, this study explores theprivate law value embodied in customs affairs guarantee and posits that though therules of civil affairs guarantee cannot be directly applied to customs affairs guarantee,to properly borrow from private law can surely lend strength to the development ofcustoms affairs guarantee while admitting the private law attribute of customs affairsguarantee.Drawing on both civil law theories and administrative law theories, this studyexplores the basic theories of customs affairs guarantee, specifically articulating aboutthe nature, functions, structures and ways of guarantee. Through the study on therelationship between customs affairs guarantee and private law, this study suggestsborrowing from the advanced overseas legislation experience， applying theestablished theories about guarantee in private law to customs affairs guarantee inorder to ensure a better enforcement of customs affairs guarantee.Besides the introduction and conclusion, the dissertation is arranged in4chapters,dealing with the nature, functions and types of customs affairs guarantee, thesimilarities and differences between customs affairs guarantee and general civilguarantee, proposing to improve customs affairs guarantee through legislation.Chapter two starts with the conceptualization of customs affairs guarantee,positing that the nature of customs affairs guarantee is the critical problem in thestudy of the private law attribute of customs affairs guarantee. Although developed from private law guarantee, customs affairs guarantee does not necessarily haveinherent private law attributes or can inherently adopt rules of private law in itspractice, when related legislation is absent. The theoretical source and whethercustoms affairs guarantee has private law attributes are always the focal problems inthe study of customs affairs guarantee. In customs affairs guarantee, the relationshipbetween cause legal relationship, the third person as warrantor, and the administrativerelative person are closely related to customs affairs guarantee, but are not guaranteerelationships. Only when the administrative relative person fulfilsl the customsresponsibilities with property, rights, and promises, and obtains acknowledgementfrom the customs, the behaviors become guarantee behaviors, and the relationshipbetween the warrantor and the customs becomes guarantee relationship. So, customsaffairs guarantee is not only a guarantee contract or a sum of money, it’s closelyrelated to customs responsibilities and the trust relationship between the relativeadministrative person and the warrantor. These three legal behaviors areinterdependent and interactive, and can influence the rights and duties of each other.Chapter three focuses on the functions of customs affairs guarantee.“Regulationson Guarantee for Customs Affairs” aims to ensure efficient and effective customsinspection. Most scholars argue that the system of customs affairs guarantee is thebest choice to coordinate the relationship between strict inspection and convenientbusiness flow. As an administrative law enforcement department, customs is on anadministratively advantageous position, which is likely to result in strict inspection onthe method, capability and procedures of law enforcement. The establishment ofcustoms affairs guarantee system is not to diminish the administrative inspection, butto achieve an coordinative environment through providing convenient trade andefficient customs pass in the development of administrative law. In practice, themethods customs uses to strictly inspect administrative relative person areadministrative custody, administrative penalty, and administrative coerce. So the valueof customs affairs guarantee is to find a new type of management to ensure both strictinspection and efficient customs pass and convenient trade flow. Meanwhile, startingfrom the early“recognizance release”to the current customs debt guarantee, studies on the nomology, legislation, law enforcement of customs affairs guarantee overseas arequite established, which can serve as good experience for customs practice in China.Chapter four articulates on the use of various types of guarantee， namelyguarantee、pledge、mortgage. It is pointed out that in Customs Law and TheRegulation on Customs Affairs Guarantee” there is no regulations on the way ofcustoms affairs guarantee, which implies that the legislator intends to establish a newsystem of administrative guarantee different from private law guarantee. But due tothe facts that customs affairs guarantee does have private law attributes,administrative guarantee theories are absent, and the warrantor’s legal rights cannotbe protected without private law guarantee, the methods of customs affairs guaranteeshould be private law guarantee. However, it dose not necessarily mean that customsaffairs guarantee and private law guarantee should be identical. Due to the differencesin motives to do the guarantee and the different subjects in legal guaranteerelationship, the acknowledgement, power, fulfillment, cancellation, the relationshipbetween different subjects, the legal results, and the settlement of disputes may allface various problems.Chapter five proposes some ideas to improve the legislation of customs affairsguarantee. This chapter makes it clear that to improve the system of customs affairsguarantee should start with the procedures, on the basis of which whether there ispartial guarantee on customs creditor’s right is discussed. Also discussed is themultiple guarantee relationships, when guarantee on people and guarantee on goodscoexist. At the same time, this chapter clarifies the ranking of customs affairsguarantee and other guarantees, suggests solutions to the deposit account，andproposes to connect customs affairs guarantee to the related content of InternationalLaw.