Papers Category:Fiscal Levy Papers
- Tax Theory Papers
Post Time:2011-12-16 9:47:00
Abstract: Although China's research on the tax legislation short time, but in the reform and opening up, concerned about the tax legislation gradually academia, to discuss them from all angles, research into the prosperity and development of tax legislation period of the emergence of a large number of academic research results of this paper, sort out the tax legislation from the start of the course, the academic community in China since 1978, the legal doctrine of taxation, Tax Code, tax entities, law and tax law research program to analyze, with a view to the future research directions to provide a little thinking. Keywords: tax legislation, tax legal doctrine, the Tax Code, tax legislation is the substantive law refers to a specific state tax authorities.
Pursuant to statutory authority and procedures for the use of certain technologies, develop, modify, add, repeal, interpret and monitor the activities of tax law. If no tax legislation. tax law enforcement will lose the basis of justice and have lost the standard tax: tax law relationship will cease to exist, the rights and obligations of taxpayers will become empty, as the country to obtain tax revenue, regulating income distribution, macroeconomic adjustment lost the means to run a strong, stable protection.
First, an overview of research history of tax legislation
(A) the tax legislation of the embryonic period (the latter half of the 19th century to 1949)
China's fiscal law, economic law and the system generates the concept of the establishment since the 19th century are the result of western learning, and international comparisons, our concern is more for late tax legislation. The latter half of the 19th century, China new tax system in Western countries gives rise to concerns, especially the Republican period. With the country's economic development and the establishment of the bourgeois system of legislation, tax legislation has also been considerable progress of single tax have been established, including Tax substantive law, procedural law and procedural tax tax system is basically a modern shape. As of the end of 1948, China produced a number of academic or research involving tax or legal issues of special papers, such as the <<financial legislation principle '(Wu Chongyi, 1934) <<China's fiscal and legislative issues>> (Cao Guoqing, 1947), <<tax on>> (before Yan Jie, 1922) and <<tax on>> (Zhou Bodi, 1948), etc., these findings relates more to the Tax Law basic theory, tax entities, law, tax law and tax procedure law and other procedures.
(B) the tax legislation of the initial period (1949-1978) After the founding of New China.
China attached great importance to the tax legislation. September 29, 1949 Chinese People's Political first plenary meeting of the <<Common Program of Chinese People's>> in Article 40 of the financial and tax aspects of the matter, in January 1950 the Central People's Government Administration Council announced <<to the implementation of the national tax administration>> and <<tax authorities at all levels of temporary organizational rules>> June 1958 ninth-sixth meeting of the NPC Standing Committee passed the <<agricultural tax regulations>>, a founding After the first set by tax law, but because of China's planned economy, state-owned enterprises into financial distribution system, tax system is not perfect, single tax. narrow coverage, resulting in our tax legislation was limited by the study are not widely academic attention, depth of research is relatively weak, relatively little research.
(C) the tax legislation of the development period (1978-present) After the reforms, China's tax legislation has made significant progress.
Overall, the 1994 tax reform, China's legal system, the initial formation of the tax framework, the 'Personal Income Tax Law>> other three laws, <<Interim Regulations on VAT >> about 30 administrative regulations, etc., <<Interim Regulations on VAT implementation rules>> and so on more than 50 administrative regulations and other normative documents constitute a tax, although this period China's tax legislation have made great progress, but and level in developed countries compared to the tax law, there are still some gaps. Second, recent research progress in China's tax legislation since 1978 (especially after the 1994 tax reform).
Academic issues of tax legislation a lot of research, these results are more concentrated in the basic theory of tax legislation, Tax Law, tax substantive law, Tax Procedure Act and so on. (A) the basic theory of tax legislation: tax revenue of the legal doctrine of legal doctrine.
Also known as the tax law doctrine. The meaning of the statutory tax doctrine of the excavation is the theoretical basis of tax legislation.
1 the origin of the tax the legal doctrine and practice of revenue generation and the legal doctrine of bourgeois democracy, the rule of law ideology are inseparable from the UK signed in 1215 <<Great Charter>> laid the ideological basis of the statutory tax started to France through 1789 the <<**** and Civil Rights Declaration>> the relevant regulations. After 500 years of development, tax legal ideology into Britain, the United States, France and other three non-feudal tax system is an important part of democracy and the rule of law as the spread of ideas, the legal doctrine of gradual tax for all countries practice. were reflected in the constitutional document, such as Singapore <<Constitution, 'Article 82 states that' except by law or under law other than those approved may not be from Singapore or Singapore purposes. the imposition of any state and local taxes '; Belgium <<Constitution>> Section 110 provides that' national legislation must pass in order tax provisions, 'Japan <<Constitution>> Article 84' new courses or changes in existing tax tax , must have a legal or statutory provisions, based on the conditions. ' Countries in the tax practice of the legal doctrine that taxes levied by the **** transition to democracy levied. Tax the legal doctrine of research results. China scholars on the legal doctrine of taxation consistent understanding of the concept, gold macro (1989) pointed out, ' tax levy must be based on class and assigned according to the law in other words, there is no legal basis. the State can not levy taxes and assign lessons, the National shall not be required to pay taxes. '① Liu Jianwen (1995) that' taxes must be legal basis and the tax law and tax '②. Shou-Wen Zhang (1996) that' the subject of rights and obligations of tax must be regulated by law, tax law, the various constituent elements are essential and can only be clearly defined by law: levied for the main The rights and obligations only to the law as the basis, there is no legal basis for any subject shall not be taxed or tax breaks. 'Liu Xiuwen (1999), suggests that' the legal doctrine is administering the tax revenue, ie tax law and tax law. 'irrespective of presentation of how they are different, but the definition of the concept of tax legal doctrine is around the 'must have tax law, not not a tax' ⑤ classic expression of this started.
Tax content of legal doctrine, some scholars to be summed up as three principles, namely, the statutory elements of the principle of taxation, tax elements of clear principles and procedures of the legal principles: while some scholars believe that the legal doctrine focuses on solving tax entity in the tax law the problem. rather than the procedural safeguards, therefore the content of the legal doctrine of taxation should only include the physical content, namely the statutory elements of assessment, taxation and other elements explicitly. From this point of view. assessable elements of the academic community for specific elements of the legal and taxation general consensus, while procedures for taxation and other issues are still objections, I believe that, because of the tax levied for the interests of both procedures there is a very significant impact, so the tax should be included in the legal doctrine of fundamental tax procedures; while the actual operation of the tax program highly so, where specific problems are generally by the executive through administrative regulations to regulate. Constitutional legal doctrine on the tax issue and some scholars believe.
China's current Constitution does not make a specific legal doctrine of taxation, comprehensive, clearly defined, and some scholars, '<<Constitution>> Article 56 The tax liability of citizens of both recognized also the right of a state tax limitation. 'But the differences between these views are based on the' Constitution should reflect the tax legal doctrine 'on the same position for the Chinese tax legislation has laid a theoretical foundation for the promotion of tax legal doctrine clearly defined in the Constitution to make a positive contribution.
(B) the Tax Code legislation Research Looking theorists study the dynamic of the Tax Code, the scholars can be found on the Tax Code of the contents of the form of more in-depth, but some of the content itself, there are a lot of controversy.
1 The name of the controversial Tax Code for the Department of the basic tax system, laws, many scholars have offered their names made known any suggestions, but now widely seen in the name of academic writings in the 'Basic revenue' and 'tax General 'two. If as a 'Tax Law' and the name, the more popular of its semantic clarity. Easily accepted by the public, but can also show the nature of the law of the Constitution, but some scholars who deny the attitude that 'Basic Law' is a legal kinds of title, the main effect that differs from its common law, but if the name 'Tax Law' is contrary to our long-standing form of legislative practice, and has introduced tax legislation does not dovetail (iv). Links to free download http://eng.hi138.com
I believe that because of 'Basic' the broader meaning, such as <<Hong Kong SAR Basic Law>> and <<Macao Special Administrative Region Basic Law>> If using the 'Tax Law' the name is easy to confusion caused by the official word. Looking at China's legal system, if there is a basic, leading normative legal documents, usually known as the 'General' terms such as <<General Principles of Civil Law>>. Therefore, for tax system basic laws can be 'Tax Regulations>> as the official name. is consistent with our legal practices. and consistent with international practice, and refining clear. Tax Code, the legislative model selection. domestic scholars widely used comparative study of the Tax Code, the legislative model. Looking at the foreign tax system can be divided into three modes, namely 'Code style', represent the country the United States, 'Tax Regulations plus a variety of single tax.' representatives of Germany, 'distributed.' Behalf of the state of China. At present, the academic community generally tend to choose the second mode of the tax system for 'Tax Regulations plus a variety of single tax' can be classified as 'developed' type, 'more developed style' and 'developmental' 3 types. academia through a comprehensive analysis of three types of pros and cons with conditions was agreed that China should select the 'more developed' type of legislative model is more appropriate. to determine the content of the Tax Code (1) the scope of the Tax Code. controversy focused on: whether to include tariffs, including the name of 'tax' all income, or substance containing a variety of government revenue for the tax, such as fees, fund other projects (2) General principles of tax law. Some scholars from the law point of view of interpretation. that the principle of the Tax Code should reflect the basic principles of tax law: Some scholars, however, are discussed from an economic perspective, that the Tax Code should follow the basic principles of taxation (3) the relationship with other law due to the current tax law General research is not mature enough, perfect, the academic community on how to define the Tax Code and other laws such as constitutional, administrative law, civil law, tax administrative relationship exists between the more controversial (4) tax **** profit protection. Tax General need to address the core issue is to protect the rights of the taxpayers, highlighting the spirit of democracy and the rule of law, but how to protect the tax **** academic interest has not yet reached a consensus, but for **** Tax Code provides that the tax benefit issues, scholars generally tend to be concrete and feasible to provide the right, rather than simply abstract requirements (5) tax on the right. the general point of view, legislative debate focused on whether the tax included in the Tax Code of the legislative power is divided legal text, if included in the central and local legislative power between how should the tax division of these two issues from the current development trend, more scholars, practitioners tend to divide out the tax legislative into the Tax Code of legal text, and between central and local tax revenue for the division of legislative issues, agreed that the tax should be given to local independent legislative power, but need to be standardized. Tax Code and legislative framework of steps the legislative framework of the Tax Code results of their research is 'a master', not only contains information about positioning, effectiveness, value and other abstract ideas of legislation, the legislative model Tax Code also includes the selection and the content covered and the logic of the order, etc. First, by the State Tax developed by the Organization Administration <<People's Republic of Tax Law>> (draft) to discuss the sixth draft (1997), and second, commissioned by the NPC Financial and Economic Committee of Peking University Professor Liu Jianwen led the drafting of <<People's Republic of Tax Law (Tax Law General)>> Comparison of the two legislative framework to reflect the Tax Code in some studies with different convergence: common is that the positioning of the Tax Code: The difference is that the former focused on the maintenance tax effective exercise of power, **** The latter focuses on the tax relief benefit, protection with further research, the latter program also includes a number of new research results, such as international coordination and cooperation on tax issues discussed. For the Tax Code of the legislative steps that scholars should be implemented step by step.
Before all the legislation, then the time is ripe in the basic contents of the Tax Code in the constitution, that is, after the first constitutional legislation. (C) the tax legislation of the current substantive law.
China has initially established a turnover tax, income tax as the main body of the general framework of substantive law. As the market economy continues to improve, the current tax system gradually show its limitations. Our substantive law, only <<Personal Income Tax Law>> and <<Enterprise Income Tax Law>> NPC and the Standing Committee have enacted laws that only 30% of China's tax revenue is based on the law to charge, and take our more than 40% of total tax revenue of VAT and other taxes are based on <<Interim Regulations of the PRC VAT>> tax from the perspective of tax revenue accounted for, taking into account legal and departmental rules and regulations of the legal effect, can be said that our country has not developed a 'tax according to law,' the framework of so much legislation for VAT scholars concern.
Academic value-added tax legislation for the urgency and necessity of a more consistent view of the current VAT legislation of our discussion focused on two perspectives: one from the legal perspective of the VAT legislation should follow the legal concepts and legal value, and on this concept and value in the 'VAT Act' in the appropriate expression gives the answer 051, and the second, from the perspective of value-added tax system, improving the legislation, the main focus on value-added tax to start. (D) Tax Procedure Act Legislative Studies 1 tax procedure law concept.
Drawing on international research, the definition of the concept of tax procedural law, China's tax system from the academic point of view will be more tax revenue is divided into substantive law and tax procedure law, that Tax Procedure Act to require tax collection procedures and procedures related to the subject of rights and obligations of the legal norms set, wears a symmetry debt and tax entity in the tax system is the protection status. <<Tax Administration>> of the reform objectives. our tax procedural law is <<Tax Collection Administration Law>> (the <<Administrative Law>> through 1992) and its implementing rules, though, after ten years continuously revised the law, but this 'Management Act' legislation guidelines did not happen too much change, relative to tax administration, the tax benefit protection **** serious shortage. and created a lot of problems. scholars have led to tax collection and tax law issues discussed that the tax collection law should **** reflect the tax benefit. **** in maintaining the tax benefits of the 'revenue protection law.' Tax Procedure Act, other subsidiary laws scholars believe that China's tax procedure law only by a General nature of the tax collection law and some specific Invoice Management components. tax procedure law is too monotonous, the law of agency (iv) for tax, interest tax **** Protection Act, Law on the Organization and so the tax has not yet issued. Tax Procedure Act do not form an overall framework, not provide adequate procedures for tax protection.
Third, the Chinese tax legislation of the legislative review of the tax issue despite our late start, but a lot of money also achieved academic success for the Chinese tax legislation in-depth study has laid a certain foundation. The author believes that China's tax legislation can also be studied from the following aspects in depth.
(A) from an economic perspective to explore further the issue of tax legislation can be seen from there, even though the tax legislation of the research results abound, but more to explore from a legal perspective, the 'legislative' and talk about 'legislation . 'taxes and the economy because there are close links between the economic decisions of tax, the tax impact on the economy. Therefore, any tax policy may affect economic development, social welfare changes. Therefore, the study of tax legislation should stand on a higher point of view the problem from a tax policy legislation on the economic and social well-being to examine the impact of tax the importance of legislation, rather than simply as a 'legislative' and 'the legislative process.' If we just from the perspective of jurisprudence to study the tax legislation, is likely to lead to China's tax system more perfect the legal level, but the core of the most important tax law - the scientific nature of tax policy has been lacking, resulting in the tax system, 'nominal' Guaixiang. administering the tax content includes not only the 'legal basis', also contains a 'have good laws to follow.' so the next step scholars should be more from an economic perspective the necessity of tax legislation, scientific, etc. for tax legislation to provide protection of economic theory.
(B) the tax legislation to strengthen the quantitative analysis of existing literature, most of the tax legislation qualitative analysis tools to examine the use of the problems of tax legislation, improved measures, which the study of jurisprudence perspective and not unrelated, if from an economic perspective examine the tax legislation, you can use the tax economics from the perspective of quantitative analysis of the behavior of tax legislation on economic efficiency and equity effects of the degree of improvement of social welfare, but also from the perspective of institutional economics to improve the system of tax legislation impact on economic growth, etc., so that the tax legislation of a more multi-angle, more scientific, more in-depth. Links to free download http://eng.hi138.com