Discussion On Taxation Legalism

Taxation legalism, as one kind of concepts with constitutional class is the materialization of democracy, nomocracy and human rights etc. constitutional spirit in taxation domain. Realizing taxation legalism has an important meaning in limiting public rights, protecting taxpayer's rights and pushing the nomocracy target. But in our country, since the taxation law was published not long time ago, besides the preliminary discussion of some of the scholars on taxation legalism, it is rare that someone has done some kinds of systemized research on the theory of taxation legalism and on the problem of system structuring from the angle of nomology,this not only restricted the supervising function of taxation legalism in taxation theory and practice, but also influenced the pursuing on the substantial justice of taxation law which is not beneficial for the protection of the taxpayer's rights. This article has taken apart on the general theory problems in taxation legalism from nomology angle, it has also taken the legislation of taxation as a visual angle and has done the systemized reasoning on the system structuring and the gist on its theory for the realization of taxation legalism.The thesis is composed of introduction and four chapters,in the introduction part, it introduced the bringing up of the problem, the realistic meaning of the thesis research and the research routes of the thesis. The first chapter of the thesis has taken apart the general theory problems in taxation legalism.First, this chapter has given a general introduction on the resource of taxation legalism in England and America as well as the establishment of constitution in many countries in the world, it has used word meaning analysis method and unscrambled the meaning of"taxation","law","fix"and"ism"from the point of view of taxation and legalism. Here, the definition of"taxation"has thrown away the definition of"taxation"in the traditional rate paying deontology, it has adopted the society contract theory of the recent scholars as a reference, borrowed the exchange theory of foreign countries and the taxation concept of public need theory, it has made clear the purpose of taxation in"making the country possess the capability of providing public service", desalted the characteristics of coercibility and compensation less in the traditional taxation theory. The"law"here includes the taxation law constituted by the highest power organization of the country, the local taxation regulations constituted by the local special legislature that meet the constitution (or the basic law of taxation). The legislative of taxation important document is controlled by the national power organizations,it is because that the country power organization is formed with the representatives elected by the people and the taxation law composed constituted by it will meet better the public opinion."Fix"here has the meaning of gist and establishment. The"ism"here shows that taxation legalism is one kind of concepts that is higher than the legal principle of taxation.Secondly, this chapter has taken apart the overall inner meaning of taxation legalism from the point of view of system and concept which is actually system structuring and value containing, it considers that from system structuring, taxation legalism includes important legal document of taxation, confirmation of important taxation document, the validity of taxation and the principal of process guarantee;in value containing,taxation legalism is the actual materialization of democracy, law and human rights in the domain of taxation law.Last, for the sake of reinforce the understanding on the functions of taxation legalism,this chapter has tired the society functions of taxation legalism, considering that it includes 6 aspects:first is to establish the base for the validity of taxation;the second is to restrict the improper use of taxation power;the third is to tone up the stability and predictability of the taxation law;the fourth is to realize the justice of taxation;the fifth is to protect the taxpayer's rights;the sixth is to improve the structuring of socialist harmony society.The second chapter of the article has demonstrated the system structuring of legislative of taxation in transverse direction.Although the traditional taxation legalism required that the taxation legislative should be controlled by legislature in order to guarantee the public opinion of taxation law,because of the needs of the reality of the society, the legislature usually awards the legislation power to the administration organizations,so taxation impower legislation appears. This article considers that taxation legalism not absolutely excludes taxation impower legislation and the taxation impower legislation has proper basis for existing.This chapter has taken apart part of the criterion documents of taxation on its validity, exposed the shortage and loss of taxation legalism in our country which has made the taxation legislative power not clear in bordering between the transverse direction of the legislature of the central government with the administration organizations that has aroused the problem of administration organization exerting important taxation proceeding legislative problem in criterion documents form. Seeing from the reverse side, the transverse division of taxation legislative of our country, some realistic problems really exist:the constitution is lack in the regulations on taxation legalism;the congress reserved proceedings is lack in legislation;taxation impower legislation problems. These problems result in the fact that the administration organizations monopoly most of the taxation legislative that influences the quality of taxation legislative in our country and make the authority, satiability and compatibility be damaged,taxation legislation disregards the protection for the taxpayer's rights, the taxation legislation technique is rough, taxation organization has done the explanations exceeding their authorities. So we should establish taxation legalism in"Basic Law of Taxation"linking with the reality of our country and raise the standard of the existing taxation law and form the taxation system majored in legislation. At the same time we should strengthen the criterion and monitoring on the taxation impower legislation from law and regulations, from the legislation process and from the building up of the organization system in order to prevent taxation legalism from damage.The third chapter of the article has demonstrated the system structuring of legislative of taxation in lengthwise direction.First, this chapter has considered in reverse the realistic problems on taxation legislation collocation between the central government and the local,it considers that the lengthwise collocation on taxation legislation in our country at present is in a highly centralized mode and the local is lack relevantly the independent taxation legislation. This mode has brought some standing out problems:the first is that the power of taxation legislation is too centralized and the local finance cannot get sufficient supply,the local is, through all kinds of methods, damaging the consolidation of taxation law, disturbing the execute of taxation law and informality power dividing undercurrent is existing. The second is that because of the lack of necessary tools for adjusting income, the local charge outside of taxation is rapidly expanded. The third is that the local government relies severely on the transferring payment system in finance. This article considers that part of the taxation legislation of our country should be released based on the centralization. Adopting centralization as the leading mode is decided by the single politics system of our country and the economic development status of developing countries;release some taxation legislation power within measure is because that the difference between each place in China in nature and society conditions are quite different and the power of the local on affairs and finance are not coordinating.Second, this chapter has borrowed from foreign taxation legislation on the principals of taxation legislation lengthwise collocation economic theory which means that the finance unionism and brought the basic point of view on taxation legislation lengthwise collocation of our country. It considers that both national highest power organization of the country and the local organization are both organizations of the National People's Congress and the laws they legislated are the materialization of the public opinions. Besides this, giving the local some taxation legislation power has already become a common practice of that of many countries. Today, the"law"in taxation legalism should indicate the laws that designated legislation organization legislated, it not only includes the taxation laws legislated by the highest power organization of the country but also the local regulations the local power organizations legislated according to constitution (or Basic Law of Taxation). Our country should release some taxation legislation power to the local government under the centralization condition,this kind of method does not disobey the requirements of taxation legalism but good for inspire the enthusiasm of the local government and make the power for affairs and finance of the local consolidated,adjust measures to local conditions and do the economic construction well.Last, this chapter pointed out that the taxation legislation of the local should be quite limited and be severely controlled. Because of this, it should first fixed the problem of taxation legislation power of the central government and the local government in the"Basic Taxation Law"and provide legislation guarantee for the lengthwise division of taxation legislative. The second is that the local taxation legislation should be one kind of legislation that is controlled and not totally independent and limitation is its major characteristics. The third is to set up the controlling system of the central government to the local taxation legislation, the local taxation legislation should be handed over to the National People's Congress and it Standing Committee for approval and then become effect. The fourth is to set up the monitoring system of the public to the local taxation legislation.The fourth chapter of the thesis has stated the realization of taxation legalism in the legislation process.First, this chapter discussed about the principle of correct process of taxation legislation,pointed out that the correct process of taxation legislation is the guarantee of taxation legalism process. This article considers that the taxation legislation process is one of the components of correct legislation process,correct process theory should be used to structure the correct process system of taxation legislation. Through the comparison of the two kinds of value analysis methods of process instrumentalism and process standard, pointed out that the correct process of taxation legislation should be the combining of justice and instrumentalism,when we do the designing of taxation legislation process, we will emphasis the justice value of the process but we should not neglect its value in raising the efficiency and maintaining orders,but the two are not at the same level,the correct process of taxation legislation should have its inner value which means the justness of legislation process as the major value;its outer value which means the instrumentalism of taxation legislation process as the subordinating value. Only the taxation legislation meets this value standard is proper. The proper process of taxation legislation should have the property of participation, openness, negotiation and efficiency. Because the process of legislation is open, the public can effectively participate through different kinds of channels, the thorough negotiation of different principal parts and the high efficiency orderly process of legislation activities, it guaranteed the fairness and scientific ness of the legislation result, the proper process of taxation legislation has the functions of improving the realization of taxation law, protecting the taxpayer's rights,tone up taxation legislation democracy and facilitate the society harmony.Secondly, this chapter has done the reality analysis on the process of taxation legislation, pointed out the shortage of justice in the process of taxation legislation and the operation conditions it relies on. Looking from the time fixed for the people's congress, the representatives of the people's congress, the openness, the participation of the experts etc. legislation process and the operation conditions, the time for the people's congress is short, the legal qualifications of the people's representatives are low, the communications between them and the electorates not smooth, the process of legislation not open enough which has made the participation and negotiation level low during the legislation process of taxation in our country. From the four tache of the bringing up of the act, deliberation, vote and promulgate,the taxation legislation of our country is severely short in openness, participation and negotiation. So the taxation legislation process of our country should be perfected. The time fixed for the people's congress of China should be extended accordingly, the representative structure should be optimized, the experiences of America should be borrowed, the open system of legislation should be set up, consulting and reasoning system by experts should be carried on. Overall relevant system should be set up from the bringing up of the act, deliberation, to the voting and publicizing of the taxation legislation,in order to tone up the openness, the participation and negotiation of the legislation activities.