Study On The Legal System Of Governmental Fund In China

Governmental fund is a non-tax revenue with the purpose to achieve policies in specific economic and social field which is levied on specific groups in accordance with the prescribed procedures by governments at all levels and their departments according to the law and has its special usage.Having clear differences with the general tax, special type of tax, fees, user charges, governmental fund is a fiscal instrument with wide variety and has its basic characteristics of special policy, being levied on specific groups, special legal association,non-treatment of payments,specified usage. As an expansionary financial tool, governmental fund is similar to some extraterritorial financial tools, but has its different background and actualities. To a certain extent, it is a product of the non-standard financial system and has been abused in fact. Although the governmental fund's management is standardizing day by day, how to well regulate and control this special financial revenue and expenditure tools to protect the property right of citizens, legal persons and other organizations is also the central issue which is worthy of study in the legal system of governmental fund.Owing to our country's lack of basic legislation on governmental fund, the framework of legal system in governmental fund is still vague. This becomes the biggest institutional obstacle in its reform nowadays. Therefore, the systematic research on the legal system of governmental fund should focus on the basic framework of its legal system and its related construction. The construction of the legal system in governmental fund mainly lies on the general law. The fiscal legislation should be well coordinated with the economic legislation and administrative legislation in the legal system of governmental fund. According to the logic of its basic operation and related theory of financial and tax law, the legal system of governmental fund could be divided into four fundamental aspects, including the system of establishment, the levy and use system, the supervision system, the system of dispute resolution.The system of establishment is related to the generation of the governmental fund, which is also the pre-condition of the levy and use system, supervision system and dispute resolution mechanism. The basic contents of the governmental fund's system of establishment is composed of the principle of establishment, the procedure of establishment, the range of establishment and the fundamental factors. The establishment of governmental fund should follow the principle of establishing according to law and explicit authorization, the principle of complementarity, the principle of financial fair and the principle of periodic review.The essence of establishment procedure is legislation procedure. The legitimization of the establishment in governmental fund needs to check up the existing governmental fund according to the legitimacy principle and regulate the current application and approval procedure.The range of the establishment should embody the governmental fund's functional boundaries with tax and other fiscal instruments in form and with the market, society in essential.The existing governmental fund's range of establishment should be perfected accordingly.Compared with its establishment range as a whole, the fundamental factor is the inherent form of a governmental fund in microscopic sense.Generally speaking, it should at least consist of the collect subject, the being levied group, the object of imposing, the levy standard and other basic factors.The levy and use is the fiscal realization of the governmental fund's establishment system, which is also the basic aspect of its daily management and has close connection with the public, resulting in many disputes easily. The levy and use of the governmental fund is the main object of supervision system, which is at the center of the legal system in the governmental fund. The levy system of governmental fund mainly comprises of the levy subject and levy procedure. Use system belongs to the financial expenditure system and should focus on the use prinple, the use range and its user. The accounting system and the treasury system belong to the auxiliary system in governmental fund's daily management, which could be incorporated into the scope of the levy and use system in study.The supervision system of the governmental fund should focus on the administrative behavior or administrative process related to its daily management. The current supervision in the governmental fund has some prominent problems such as the low degree of the rule of law, the lack of external supervision, the poor supervision effect, the scarcity of public participation and democratic supervision. Reconstruction of the supervision system of governmental fund should insist on the principle of rule of law, strengthening the external supervision, strengthening the democratic supervision of the representative institutions and the democratic participation of the public, realizing the legality supervision and rationality supervision and focusing on perfecting the budget supervision and auditing supervision.The main disputes related to governmental fund are administrative disputes, which are mainly non-abstract disputes. According to the development tendency of the constitutional democracy in the financial field, the current dispute resolution mechanism of governmental fund needs to be reconstructed urgently due to the limitation from the financial system, the judicial system and the system of governmental fund. In order to reconstruct the dispute resolution mechanism of governmental fund, we should perfect the pre-procedure firstly, which means to strengthen the mechanism of the consultation, mediation and reconsideration. Secondly, the litigation mechanism should play a full part in this area. On the basis of perfecting the ordinary administrative litigation mechanism, we should constructing the public interest litigation of administrative to resolute the abstract, objective dispute and constructing the special financial litigation correspondingly in time according to the well considerations on the particularities in fiscal area. Finally, it is necessary to construct the constitutional control to resolute the constitutional dispute and realize the constitutional control on the governmental fund.Systematic investigation and research on the specifc system of governmental fund is the basis of its legislation study.The legislation of governmental fund is necessary and has considerable degree of feasibility nowadays.The legislation of governmental fund should insist on the basic principles of legal preservation, comprehensive coordination and justice having priority to efficiency in order to resolute the basic issues such as level localization, system arrangement and value orientation.Making the choice of basic law of legislation mode and constructing the legal system of governmental fund should focus on arranging the internal logic of its basic legislation, coordinating the relationships between the legislation of governmental fund with the basic financial and tax legislation, coordinating the relationships between the legislation of governmental fund with the policy legislation in specific field.