| All the time, legal scholars have naturally or half unconsciously connected punishmentwith penalty or the administrative, civil liability to be undertaken by the citizens. Research onthe tax law has also been confined to traditional notion of the criminal, administrative or civilliability of taxation. Punishment seems to have no direct connection with the revenue-targetedtaxation. Have we all the time narrowly interpreted the essence of the reprehensible conceptof punishment in legal system construction? Or the punitive nature of the tax law is a newelement of legal response to unbalanced economy? This study systematically reviews thelegislation of punitive rules of domestic and foreign tax laws as well as the research status ofpunitive rules, and re-examines from a brand-new and objective perspective the position, androle of the punitive rules in tax law system construction as well as the means of improvementof the punitive rules.This study is a special research on tax law under the background of building a socialistlegality country. It aims to make a tentative study on the punitive rules of the tax law, with theresearch on punitive theory in criminal law and civil law as the starting point, with theresearch results made by legalist and economists as support, and with the protection of thetaxpayers’ rights and the maintaining of social sustainability and economic stability as thegoal.This study follows the logic order of the origin, questioning, reflection, exploration anddevelopment of the punitive rules. It makes a connotation interpretation starting from thehistorical evolution of the punitive rules. It then questions and reflects the bad social effectcaused by the existing rules system through the economic and social effects analysis, andbased on which, makes an in-depth thinking on the legitimacy and rationality of the punitiverules. It also discusses the protection of the taxpayers’ rights, and talks about the positivesignificance of the punitive rules in keeping a balance between the fiscal power andadministrative authority of the local governments. At the same time, this study, throughscrutinizing the research and legislation situation at home and abroad, sums up some relevantexperience for reference, extracts the tax elements of punitive rules, and finally puts forwardsome suggestions on perfecting the punitive tax law rules of China.In addition to the introduction and the conclusion, this thesis consists of six chapters. The first chapter introduces a brand new angle for taxation regulation, that is, punitiverules. This chapter is the logical starting point of the whole research. It is mainly divided intothree parts. The first part, starting from the historical position of taxation in our country,reinterprets the concept of penalty, and concludes the connotation, types and characteristics ofthe rules in modern tax laws. In the origin of the theory of punitive rules, research indicatesthat, social contract theory, Foucault’s theory of punishment and the public interest theory arethe origins of punitive rule, and that the equity tax theory which is directed at marketeconomic disequilibrium is the direct theoretical basis of punitive tax rules. Based on themarket conditions proposed by the equity tax theory, this study discusses the necessity andfeasibility of implementation of punitive rules from market regulation as well as taxpayeridentity perspectives. The second part, after analyzing the origin of punitive rules of tax law,makes a detailed analysis of localization of the punitive rules, points out that the auxiliary,special purpose and the choice of camera are the main status and the basic characteristics ofthe rules in the tax system, and that such a tax position is decided by the cost and alternativeadvantages, economic and social effects of the punitive rules, and which in turn generatescorresponding social and economic effects. The third part, due to its susceptibility of likelyconfusion of punitive rules with the surrounding concepts, distinguishes the punitive rulesfrom related concepts, elucidates that punitive rules are not "penalties" in legal rules, and thatits application is also different from the ban tax deduction rules, and can not simply be equalto heavy taxes.The second chapter is about the analysis of the effect of punitive rules on economy andsociety. This chapter mainly studies the controversy existing between theoretical and practicalcircles over the punitive rules as well as its limitations and applicable risk, and analyzes thetheoretical and practical problems of the punitive rules. This chapter is mainly divided intofour parts. The first part, from the point of view of the characteristics of the punitive rules,objectively analyzes the possible conflict between the punitive rules and constitution and taxlaw principles and social order, and points out such theoretical conflict is not irresolvable,with the essence of the punitive rules being a kind of supplement and improvement of thelegal and social principle. The second part, from the existing and applicable conditions ofpunitive rules, points out that the existing limitations of the application of punitive rules aremainly composed of collocation resource limitations, internal contradictions of revenue targetlimitations and government defects limitations. The third part is about the tax burden which is one of the important characterizations of social conflicting triggered by punitive rules, andalso the direct factor inducing negative motion to the taxpayers. In this section, analysis ofmacro tax burden and microcosmic tax burden levels of punitive rules brings about a vividpicture of the actual effect of punitive rules for the rich class, the middle class andlow-income class. In the fourth part, due to a series of problems currently existing for thepunitive rule itself and the application environment, the taxpayers have to take variousmeasures to cope with high tax burden, thus reducing the taxpayers’ compliance degree, andaffecting the implementation effect of punitive rules. How to realize the double profit of stateand taxpayers must be addressed in this research.The third chapter is about an analysis of punitive rules for tax right. The protection of therights of taxpayers is the key part of punitive rules research, hence the connotation,manifestation and the protection ways of the taxpayers’ rights under punitive rules are thefocus of this chapter. This chapter is divided into four parts. The first part clarifies themeaning of tax right and the legal relation of the tax from an academic point of view, andpoints out that the theory of public goods is the source of national tax power, and that thecitizens tax rights is an extension and evolution of the public goods theory. The second partutilizes the game method in the analysis of the relationship between state tax power andnational tax right, and through the analysis of interest group differentiation, points out that thestate tax power and national tax right equilibrium is not immutable; instead it is realized intheir own dynamic compromise. The third part focuses on the state tax power, as a kind ofmonopolized and mighty public power, the use of which must be strictly restricted under thepunitive rules. The state tax power is fundamentally decided by the public interest. This part,through qualitative and quantitative analysis, sets up a tax law boundary of the public interest.The risks and consequences of abuse of state tax power indicate that tax right must bear aclear distribution as well as a rational allocation of the legislative powers between the centraland local government. The fourth part, emphasizes that, in the face of state tax power, thenational tax right must be adequately protected. This research, from the economic,institutional and social order perspectives, reveals the reasons underlying the protection ofnational tax right points out that national tax right will obtain comprehensive safeguard withthe balance of value and with a more favorable protection, and makes specific analysis of thelegal protection of the three national tax rights such as the right of tax increase consent, theright to know and the right of special tax use. The fourth chapter makes an empirical study on the legislation of punitive rules at homeand abroad, providing background materials for the empirical analysis. This chapter is dividedinto two parts. The first part, starting from the historical evolution of punitive rules in China,and by comparing the development of punitive rules under natural economy, plannedeconomy and market economy, confirms the conclusion that punitive rules are a product oftax law’s response to market economy disequilibrium. This part systematically analyzes thetax rules with the nature of punishment in mainland China and Taiwan, including a briefdiscussion of their legislation and implementation background. The second part elaborates onthe historical evolution and development of the punitive rules in foreign countries, with anaim to search the origin and development of punitive rules in traditional and modern taxtheory. To illustrate, this part enumerates and analyzes certain rules that has economic andsocial influence in the United States, France, South Korea and Russia, and comes up withsome experience for reference in rule making and implementation.The fifth chapter analyzes the tax elements of punitive rules, based on previous study.This chapter is divided into five parts. The first part points out that the goal of punitive rules isto achieve fair distribution, and that the punitive rules under the guidance of equitycorrespond to the current structural tax reduction policy in China due to their same objectiveand scope of application. The second part reveals the subject matter element of the punitiverules, based on the analysis of characteristics of the decision-making body, the executive bodyof the punitive rules and the taxpayer. The third part deals with the object of punitive rules,which is divided into the object in personam and the object in rem. This part first elaborateson the characteristics of the object in personam of the punitive rules, through the analysis ofhuman’s limited self-interest, limited rationality and limited self-restraint under the conditionof market economy. It then makes an overall study on the object in rem of the punitive rules,revealing its essential features of publicity and scarcity. The fourth part and the fifth part,make analysis of the main features of tax items, tax base and tax rate of punitive rules, and bycomparing the three traditional tax rate modes, probe into the criteria in the selection of taxrate mode of the punitive rules.The sixth chapter focuses on the improvement and innovation of the punitive rules ofChina’s tax law. This chapter is the foothold and the focal point of the whole thesis. Thischapter is divided into three parts. In the first part, from the local perspective, the existingrules are divided into typical punitive rules which are for the purpose of combat and suppression and atypical punitive rules which are for the purpose of regulation and guide. Inthe part of typical punitive rules, focus is on the relocation of the function of tax onoccupation of cultivated land; on the perfect of punitive rules for pollution behavior; from thepoint of view of anti-circumvention and anti-absorption law perspective, and on thestrengthening of the implementation effect of anti-dumping and anti-countervailing duty. Inthe part of atypical punitive rules, emphasis is made on the design and arrangement of thetaxation scope and the tax burden level in luxury tax; and on the perfect of real estate tax(including the pilot areas). The second part, starting from the angle of transplantation, mainlydiscusses how to introduce into Chinese tax law mature foreign punitive rules, such as listedcompany accumulated earnings tax, vacant housing tax and vacant land tax. However, thepunitive rules are not designed for the purpose of reprimand. Instead, the main purpose is tosolve social as well as economic problems. A good tax system must properly design capitalexport on the fiscal side. Accordingly, in the third part, suggestions are put forward on theperfect of tax preferential right, with an aim to construct a sound special fund for special usemechanism. |
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