| Idea of tax law is the basic views, awareness, beliefs or concepts of the tax laws, and isthe understanding and cognitive models of tax laws on the basis that reflects and summarizesthe phenomena of tax laws. Tax law system is exterior performance of tax, the most surface ofthe shell, while idea is the hidden deep core, which is also the highest level of the tax law.Idea of tax law is the soul and the supreme principle of the tax system to determine the natureof the tax system and affect the legislation and implementation of the tax system. Searchingthe idea of tax law has theoretical significance and practical value for a country’s tax lawsystem.Rulers and the ruled of ancient or modern have formed different idea of tax law withdifferent political needs and financial situation, under which they developed a variety of taxlaw systems. Experience has shown that the proper idea of tax law corresponded to the eracan bring up good tax law system, and promote the harmonious development of society. Onthe contrary, it would bring the destitution of the people’s livelihood and social disorder, andeven lead to the downfall of the country. Throughout the transformation of modern Chineseidea of tax law, we can find that it has experienced three stages: The first stage is1840to1949which idea of tax law is spreading from west countries to east. The second stage is the1949-1979which idea of tax law is nihility. The third phase of the Contemporary China since1979is a period of change in the tax law idea. The third stage is undoubtedly has been takingplace in the practical experience during the establishment and implementation of the currenttax law system, and it is concerned by every tax law scholars in China, which also is thecenter of the paper. Deeping studying the transformation of the idea of tax law will be of greatsignificance for promoting the construction of our modern idea of tax law in China.How to be present idea of tax law in contemporary Chinese as well as how to transform,is always the core concern in the paper. In order to avoid rhetoric and a loss of the issues ofidea of tax law, we must seek another newly methods. As we know, the idea is deeply hidingin people’s mind, and the only way to find the idea is to insight into the human mind. We can’tfind the idea of human but language what he expressed. Therefore, the idea of tax law isdeposited in the language of the tax law, and no way but with tax law language (discourse)analysis to get it. The author of this paper explains the idea of tax law by the method of discourse analysis which is under the influence of the post-modern discourse analysis. Theauthor carefully scanned of the resources of tax law through the method of legal discourseanalysis, and he presented the idea of tax law in contemporary China. A large number of taxlaw practice discourse analysis put the tax law idea to be presented, and you can find realoperation state of tax law idea in practice (legislation, law enforcement, judicial), and fromwhich we can further confirms the tax law idea that has been presented.Two ends of idea of tax law in contemporary China can be used two keywords to express,that is Rule by Tax Law and Rule of Tax Law, which they represent two different idea of taxlaw. Therefore, the paper has two major part based on these two keywords during the full text.Due to the natural connection between the idea and the system–the system ischaracterization decided by the idea, so this paper make use of two basic clues–idea andsystem, to explain the two tax law idea from two different levels. So the content of this articleinclude the four major parts: the first part, the Discourse and Discursive Practice under Ruleby Tax Law; the second part, the Lost of Tax Law System and Idea in China Under The Ideaof Rule by Tax Law; the third part, Towards Discourse and Idea of the Ruling Tax of Law; thefourth part, the concepts and system remodeling under Idea of the Ruling Tax of Law. Plus theintroduction and the conclusions, the structure of the paper is consisted of six parts totally.The first part is Introduction. The Introduction can be called on preparative part thatintroduces the main account of the origin of the problem and the significance of the researchand searching methods. The tax is an important theme of public life, and many countriesaround tax issues have a lot of struggle and reform. China’s tax law system also suffered a lotof criticism, and tried to change much. However, due to the fallacy of the idea of tax law,China has been making a lot of problems in the process of the tax law system construction.Therefore, to clarify what is the tax law idea, whether the tax law idea transformation,transition, what is the significance, is the language of accountability. Tax law idea refers to thephenomenon of tax laws on the basis of reflection and summary of the formation of the basicview of the tax laws, awareness, beliefs or concepts, understanding of tax laws and tax lawsof cognitive models. The phenomenon of tax laws restricting the tax law idea, the idea of taxlaw can occur in transition. The tax law idea of transformation is in response to thecontemporary needs of the times and our tax laws for the protection of taxpayer rights atop-down change. The paper mainly makes use of the method of legal discourse analysis toanalyze the tax law the idea of transformation. Collect the literature of Rule by Tax Law, the subject of speaking such literature, and content of substantive analysis to find that the idea ofRule by Tax Law is out of touch with the times and the Rule of tax law is the idea of “tax law”we should turn to. In addition, the history and value analysis method is interspersed withdiscussion, discourse analysis to provide material and direction.The second part analyzes the discourse and discursive practice under Rule by Tax Law,which is to prepare starting point of critical for the paper, and thus it can be called on thestarting point part. Since the early1980s, Rule by Tax Law, as the soul of tax, has become aresounding slogan in the field of tax law in China. What are the content and substance of Ruleby Tax Law? We can find the answers from historical forms of expression of the content.Since1981, Rule by Tax Law was expressed in a real sense of the number of taxes, since thena lot of research, discourse and practice has come to place. The leading subject of Rule by TaxLaw rise in China’s official, so it is a reflection of power relations and ideological. The peoplehold the view that tax policy has always been an important guiding principle of the Rule byTax Law or legal basis. In some expresses, tax policy directly became the basis of the Rule byTax Law. The purpose of the Rule by Tax Law, one of the important reasons is:“law” helps toincrease of the national finances,“law” to help the country’s macro-control. In short, the lawbecame the means of the Rule by Tax Law. Furthermore, they believe that tax law is notperfect performance of the most important tax legislative effect level is the express of not hightax Interim (Trial) Ordinance, of the too much Provisional (Trial) provides notice, ways.They believe the center of Rule by Tax Law is to strengthen the enforcement of tax law. Toimprove the legislative level of tax law, tax law enforcement to carry out a "war", theestablishment of the fiscal (tax) procuratorial system, the creation of an independent (special)the Tax Court system should became the context of Rule by Tax Law.The third part analyzes the reasons for the formation of the idea of Rule by Tax Law andthe difficulties brought about by it. The idea of Rule by Tax Law arises from China’s specialhistorical tradition and the Marxist concept of tax law and Western legal thought of theconjugates. Stressing the weight of law, heavy fines, criminal non-hierarchical tradition ofrule of law offer taxes according to the law fertile soil, and the dominant position in thenational allocation of tax strengthen the theoretical basis of the Rule by Tax Law. Therefore,the view of Rule by Tax Law general emphasis on punitive, the center is rule by law, and isdifferent of west’s rule of law in tax.Rule by Tax Law is now facing many difficulties. Firstly, in the face of western theory of rule of law, Rule by Tax Law inevitably show aphasia when be asked.“Legitimacy” isrecognized, faith and respect of the existing system or specification, is from the heart, take theinitiative to obedience. The legitimacy or legality of the law is examination of the law byitself. Any existence needs some certain of legitimacy, or the whole social or legal, willcapsize and fall apart. Taxes according to tax state violence theory, policy legitimacy theorycan not answer their legitimacy.Secondly, the obligation-based of Rule by Tax Law violates of the right--based todevelop the historical trend. China’s tax system provides for the rights of taxpayers, but stillcan not change the tax law obligations based features. Because the legal standard, we aretalking about refers to the system of rights and obligations, rights and obligations "what is thestarting point, axis or center of gravity of the problem".Finally, Rule by Tax Law induces the function of tax law dysfunction. The function oftax law means the tax laws inherent and the decision of tax law nature, to play to the taxrelationship and tax behavior adjustment and the potential ability of the protective effect.Commentators of Rule by Tax Law have suggested that the tax law function for the countryenrichment and macro-control. This confuses the boundaries of tax law function and the taxfunction. Tax law as normative guidelines, should standardize the main protection and balanceof taxation of the two sides and the interests of the main two sides in tax. These adversitieswill bring the legislation in the tax law system construction is greatly inflated, the lack ofoversight of law enforcement, judicial softening relative and other issues.The fourth part illustrates the nature of Ruling Tax of Law. The author makes use ofdiscourse analysis methods to research the meaning of Ruling Tax of law and the authorpresents his point of view. Many scholars in China intertwined the concept of “Ruling Tax oflaw” and “Ruling Tax of law”. There are many uses of the expression of “Ruling Tax of law”.Some think it equals to “Ruling Tax of law”, others believe they are different. This situationstems from misunderstandings and disputes about taxes and the rule of law, the words bringconfusion in the theory and practice. Discerning the true meaning of “Ruling Tax of law” andextension become very urgent.The rule of law is a concept, ideas, values or principles, it is based on the “good law”,and its main contents are the constraint of the power and the protection of the rights. The taxis part of funds or materials asking people to provide in order that the government can providepublic goods to the community. Rule of Tax Law is a condition that:(1) tax under the premise of “good law”;(2) the power to tax to be constraint;(3) tax law authority is able to establish;and (4) taxpayers’ rights have been guaranteed. Rule of Tax Law refers to the right to taxconstraints. Rule of Tax Law is one of forms of the rule of law and it is a concept on the taxlaws, concepts, values and principles. Reflecting the requirements of the rule of law to tax law,its basic content is to limit the power and protection of rights.Compared with the Rule by Tax Law, Rule of Tax Law includes Tax by Law, taxationdemocracy and human rights of taxation. Tax by Law is the laws designated in accordancewith legal procedures by the legislature or the authority of the legislature. And tax democraticrefers to the tax collection, management and use decided by the People’s disposable. Andhuman rights of tax collection are rights paid to taxpayers during the tax collection. Thesethree consist together to build the conceptual framework of Rule of Tax Law.The fifth part of the paper discusses the reconstruction and transformation of Rule of TaxLaw. The discourse of Rule of Tax Law has been in the emergence of China and popular morethan10years, but the Chinese tax law did not complete the transformation of the concept ofRule of Tax Law. The discourse of the “Rule of Tax Law” Characterizes of the initiation of theRule of Tax Law, but subject to a variety of factors, this process of giving birth is likely to belong and difficult.To complete the transformation of Rule of Tax Law of China, we need to proceed fromthe idea and the system. On the one hand, the concept of Rule of Tax Law should beremodeled. Firstly re-understand of the nature of the tax law. It should be possible to get rid ofsome concepts that are held by scholars of tax laws such as the nature of the tax code, the willof the state (class voluntarism), and material constraints. We should find out thecharacteristics of Rule of Tax Law on the view from the tax law inherent, intrinsicfundamental connect. From the opinion the substance of the rule of law doctrine, Ruling Taxof Law is required to have basic legal value criteria, otherwise Rule of Tax Law can not becalled tax law. Rule of Tax Law is including of legal system that is the crust, democracy thatis its support and human rights that is the heart and soul taxation. In addition, to establish therights-oriented concept of the tax law is important. Finally, cultivate the concept of taxconstitutionalism. Tax constitutionalism stressed the idea that the tax system should be writteninto the Constitution, and it stressed the idea or the concept of control the power of taxcollection in order to protect the rights of taxpayers. Tax Constitutionalism is a tangible entitywhich can control the course of conduct. The ideas of tax constitutionalism can ensure that the fundamental base and importance of the tax law. The second is to reshape the system. Toreflect the real kernel of the tax law, it is necessary to establish the right to restrict taxlegislative system and the Constitutional Review Center tax judicial system and thesupervision of law enforcement, tax enforcement system.The sixth part is the conclusion. The author summarized the full text of the main pointsand brought out the innovations of the paper. The transformation of idea of tax law lies the thechange of discourse, correct analysis of the internal structure of the tax law, and firmly graspsthe power of discourse of the tax law. Then it will be possible that the idea of tax law isconsistent with the rule of law. |
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