兩岸海關體制比較：任務、組織、規範與執行

海關的起源已難考證，關稅的發展亦由來已久。1854年，英、美、法「三國共管江海關」為我國與中國大陸現制海關之起源。目前，我國的邊境管理採CIQS (Customs, Immigration, Quarantine, Security)制度，分散權責於多個機關，大陸邊境管理則採CQS(海關)與I(邊檢)雙軌制度。兩岸海關系出同源，分治之後，海關體制與法律規範上有何異同，利害攸關，爰予以比較探討。本文對我國與中國大陸海關體制，採用比較法，以「異同」、「變遷」與「價值性原則」為比較的基準，分別就「任務」、「組織」、「規範」與「執行」進行比較。爰基於墨頓（R. Merton）的結構功能論與法治國家原則，循制度途徑，兼採「制度主義」與「新制度主義」，以法律文本為主要工具，輔以歷史脈絡，探究兩岸海關之制度與關稅法的主要異同與特點，旨在對我國海關體制和法律規範的興革提出建議，以應對全球化與環境變遷，促進海關與國家的發展。兩岸海關差異主要有：1.大陸海關政黨與行政複合治理；2.我國檢驗檢疫非屬海關管轄；3.我國海關未設具司法警察權之海關緝私局；4.大陸設有「關稅稅則委員會」；5.我國稅率結構較簡單但八位碼稅則較多；6.我國具有歷史意義的船舶噸稅改由交通部徵收規費；7.我國不徵收出口關稅；8.我國海關禁限措施較少；9.我國注重納稅者權利保護；10.我國注重法規遵守輔導；11.大陸注重關務教育、培訓與學術發展；12.大陸海關將統計列為四項任務之一。本文建議如下：1.在臺中港與臺中國際機場區間設立自由經濟特區；2.提升海關層級為直屬行政院之「海關總署」；3.恢復設立「關稅稅率委員會」；4.設置內地專責保稅與事後稽核業務之關區；5.參考他國制度設置海關緝私局；6.緝毒犬培訓中心機構化；7.提出《海關法》或《關稅法》架構芻議。8.明定《海關進口稅則》之法律地位；9.檢討《關稅法》禁限措施；10.海關推動與物流業的共同治理模式；11.增加海關駐外人員；12.大學相關系所開設海關與關稅課程；13.恢復出版《今日海關》或類似專業期刊；14.整建「海關博物館」。

關鍵字

海關；關稅；海關體制；海關法；關稅法

並列摘要

The origin of customs is hard to trace, and the development of customs has also a long-term history. The current systems of customs in the Republic of China (ROC) and mainland China originate from the co-operation of Customs House (Shanghai) among United Kingdom, United States, and France in 1854. Thus, the ROC and mainland China share a common origin of the customs system. After their systems are governed separately from each other, the similarities, differences and stakes in the systems and legislation of customs between the ROC and mainland China would be compared and discussed in this thesis. Because the border management of the ROC adopts the CIQS (Customs, Immigration, Quarantine, Security) system, the custom’s responsibilities and authority of the ROC are separated into multiple agencies, and it only executes the border management on goods. Relatively, the border management of mainland China adopts a dual track system which consists of the CQS and the Immigration Inspection respectively. The functions of the Customs System between the ROC and mainland China are not exactly the same, and their mission, organization and regulation also have discrepancies. Except for the differences in the political system, it is worthwhile to refer to the customs system in mainland China. Based on the Rule of Law and the Structural Functionalism noted by R. Merton, this thesis compares the ROC’s and mainland China’s customs in terms of mission, organization, regulation and implementation. In order to find the similarities, differences and features of customs system and act between the ROC and mainland China, this thesis uses legal texts as the main research instruments (also with reference to historical sources) while complying with an institutional approach that encompasses both Institutionalism and the New Institutionalism. The expected target is to advise on the reform of the ROC 's customs system and legislation in response to globalization and situational changes, and further to promote the development of customs and the country. The main differences between the ROC’s and mainland China’s customs are as follows: (1) The customs system of mainland China is jointly governed by the Political Party and the Administration. (2) The quarantine system in the ROC is not under the authority of customs. (3) The customs of the ROC hasn’t established the anti-smuggling bureaus which have the authority of the judicial police. (4) The mainland China has established the Office of the Customs Tariff Commission of the State Council. (5) The tariff structure in the ROC is relatively simple. (6) The historic “tonnage dues” of the ROC has been changed to fees levied by the Ministry of Transportation and Communication. (7) The customs of the ROC does not levy the export tariff. (8) There are relatively few measures of prohibition /restriction in the customs of the ROC. (9) The ROC values the protection of taxpayers’ rights. (10) The ROC puts emphasis on the mentoring regarding regulatory compliance. (11) The mainland China puts emphasis on the education, training and development of customs affairs. (12) The mainland China considers the statistics as the one of four customs’ missions. This thesis proposes the recommendations are as follows: (1) To establish a Free Economic Zone between the Port of Taichung and the Taichung International Airport. (2) To advance the administrative level of Customs to “the General Administration of Customs” which is directly under the Executive Yuan. (3) The ROC should restart the operation of the Customs Tariff Commission. (4) To establish the new Customs Services which are independently in charge of the internal bonded system and post-audit. (5) To refer to the system of other countries on the establishment of the anti-smuggling bureaus. (6) To set up the Detector Dog Breeding and Training Center as an official institution. (7) To propose a preliminary proposal for the structure of the Customs Law and the Customs Act. (8) To define the legal status of the Customs Import Tariff, and so forth. (9) To review the measures of prohibition /restriction from the Customs Act. (10) To promote the co-governance between the customs and the logistics industry. (11) Increasing the number of customs personnel stationed in overseas countries. (12) The curricula about the customs and tariff could be provided by the related university departments. (13) To restart the publication of “Customs Today” or other similar professional journals. (14) To renovate the Customs Museum.