海关监管权与民事担保物权冲突问题研究

Research on the Conflict between the Customs Supervision Power and the Real Right for Security

海关监管货物的所有权人违反《海关法》的规定,未经海关允许而擅自在监管货物上设定担保物权的情况在实践中比较常见。尽管海关监管权产生在先,且系法定行政权力,但在监管货物所有权人民事债务无法清偿而需要以监管货物作为抵押物折价或变卖以抵偿债务的情形下,由于《海关法》有关禁止擅自设定担保物权的规定仅系管理性强制性规定,不足以否定抵押合同的效力,又没有其他的明确规定赋予海关在此情况下可对监管货物所涉税款享受优先权,故海关以监管权优先于民事抵押权为由,要求就税款优先于有抵押债权受偿的依据并不充分,可能导致税款流失,给海关执法的公信力和威慑力带来极大挑战。建立监管货物公示制度,并将监管货物的税款担保责任纳入担保法的调整范围,将为这一问题的解决提供一条可行的途径。

It is quite common in practice that the owner of goods under Customs control sets the real right for security in goods without Customs prior approval. Although the customs supervision power has been set first as the legal administrative power,the provisions concerned of the Customs Law can not nullify the guaranty contract. If the owner of goods under Customs control defaults,the creditor shall be entitled to convert the property into money to offset the debts,or have priority in satisfying his claim from the proceeds of auction or sale of the property in accordance with the provisions of civil law. But the provision of Customs Law forbidding to set the real right for security in goods under Customs control without prior customs approval are merely mandatory regulatory ones and what＇s worse,there is no provisions in Customs Law indicating that payment of duties on goods in question should prevail over the real right for security. As a result,there is no solid basis for Customs to rule that the duty payment has priority over the clearing of civil debts on the excuse of supervision power prevailing over civil guarantee in this case. This may lead to the loss of revenue and threat to the public trust and deterrent power of Customs.It is thus recommended to set up the public disclosure system for goods under Customs control,and adjust the provisions on duty guarantee of goods under Customs control in light of guarantee law.