Study On Procedure Law Control Of Fiscal Transfer Payment

The Third Plenary Session of the 18th Central Committee of the CPC has raised the general goal of comprehensively deepen reforms, which means to develop and perfect the socialism institutional with Chinese characteristics, and to promote modernization of governance system and ability of a country. Meanwhile, it has put finance as the basic and important pillar for national governance, and come up with proposition of building up scientific finance and tax system and modern fiscal system. Fiscal transfer payment is an important part of national financial system, and is the important guarantee of fiscal system. Thus, in order to deepen reform of finance and tax system, build up modern fiscal system, we should attach high importance to scientific and legalization of fiscal transfer payment.Fiscal transfer payment is unrequited financial fund transfer between governments within a country. In China, fiscal transfer payment manifests as unrequited reallocation of financial fund through the ways of central authority government to local governments or from superior governments to lower-level governments. Its basic goal is to realize the equalization of public service among regions. And the ultimate goal is to realize social fairness and justice. As an important fiscal behavior of a country, transfer payment is supported by national financial rights as the origins of rights. Fiscal transfer payment has got the properties of mastery、jurisdiction and elusive. The mastery property manifests the leading and decisive status of central authority government or superior local governments during the transfer payment process. The existence of discretionary power of transfer payment is reasonable and necessary, but improper form of discretionary power will easily lead to arbitrary using of power. On the contrary of disadvantageous behavior of fiscal revenue like tax, transfer payment has the property of benefit. At the same time, on account of that transfer payment mainly happens between higher and lower governments, its validity and appropriateness have not arouse extensive concern from the society. Therefore, fiscal transfer payment has reflected the property of elusive. The existence of transfer payment’s power property has determined necessity of power control. Among many different methods of power control, law is the best way and choice undoubtedly on the basis of its characters of mandatory、generality、formalization and definition. Law has been divided into substantive law and procedural law, compared with substantive law, procedural law has its particular advantages by preventing arbitrariness of power and promoting rational decision, and it keeps on playing an important function.Scientific theories for transfer payment system could play an important guiding role in choosing target、conforming basic principles、designing specific process etc. The theory of procedure justice has focused on the internal value of the procedure and emphasized on procedure-oriented criteria which would make the result more rational. One important way to realize the legalization and positive operation of transfer payment is to take it into procedural control system, with the guidance of procedure justice theory. Procedure is not dispensable, it has differed rule of man from rule of law. Financial procedure legitimacy is an intrinsic principle and demand of fiscal legitimacy. And it requires that executive power operation must observe the regulation of procedural law. Therefore, it could ensure the effective operation of fiscal power within systematic frame, and realize the transparency、impartiality、normative of financial activity. There is a highly conjunction between transfer payment procedure and fiscal legitimacy. Public finance is an outcome of market-oriented economy time. And publicity is the internal property of it. Public financial theory has provided explicit theory guidance for equalization goal of transfer payment, but also pointed out the way and method to reach that goal.During the design of financial system, countries like America、Germany、Canada etc. would attach importance to reasonable procedure theory which emphasis on the construction of publicity、participation and transparency, they have got clear legal basis for transfer payment procedures, such as, budgeting、examination and approval、 implementation、supervisory、and dispute settlement procedure and so on. Through learning and analyzing procedural system in developed countries, there should be some reference meaning for the building and perfecting of transfer payment in China. So far, China’s tax-distribution system has developed from classified payment system which has up-dated at traditional state-monopolized revenue and expenditure system, which has embodied our country’s developing goal and direction on fiscal system has continuously transferred from nonpublic to public. As the level and current situation about financial transfer payment system in China, it is not hard to find the following problems:low rank legislation; uncompleted law system; poor quality; lack of elements and regulations; and narrow regulating range which can not cover the whole process of transfer payment. At the same time, there are some difficulties and problems about the practice of transfer payment operation because of the deficiency of procedural law control.The theory analysis and example study of transfer payment procedure is prepared for the construction of China’s transfer payment system. And there are three parts should be focus on about the procedural law of fiscal transfer payment:the position and source of transfer payment; formulate Fiscal Transfer Payment Procedure Act; basic principles, normal regulations、and specific process. Fiscal transfer payment procedural law is a guarantee law for fiscal transfer payment substantial law, and a very important part of fiscal transfer payment law. As the legislation time is almost mature, Chinese relative departments should pay close attention to study core issues of transfer payment legislation and promote the law promulgation as soon as possible. The legislation of transfer payment should be positioned on regulating activities of government and constructing a transfer payment system as complete、normal、public、and transparent. In China, the number of executive subjects are little more and confusion, thus we may learn about advanced experiences from Australia or other countries. For example, it is supposed to set up specialized department in state-council and local government for transfer payment only, in charge of its appliance、acceptance、and approval work. The basic principles and common regulations are the thoughts and soul of transfer payment procedural law. Therefore, basic principles should be publicity、participation、and equality. And common regulations should be informing、hearing、evidence improvement、 information disclosure、and time-limited regulation.The procedure of transfer payment could be divided into decision-making> executing、supervising by the criterion of different phases in transfer payment activities. During the budge-making procedure, it is useful to take an interaction between superior government and lower-level government, or search for a reasonable system for citizens to involve more. Meanwhile, hearing system should be promoted widely in budge-making procedure. In the decision-making process, it is necessary to break the closed tradition and inject publicity、participation、and equality factors into setting process to ensure the scientific and validity of the decisions. The executive procedure needs to be further completed in application、approval、payment、informing、hearing systems and implement responsibilities of illegal procedure. Legislative supervision has got the highest authority and effectiveness, so in order to strengthen the supervision power of the National People’s Congress, it is considerable to separate audit department from finance department, majoring in monitoring government as a part of the National People’s Congress. Different subjects of transfer payment have different requires which lead to some dispute, on account of this problem, we should set up a systematic way for relieve by financial decentralization. And it is necessary to explore a relieve approach which is suitable for China’s condition. The paper has analyzed a probable administrative way, which has three steps:application--examination--final judgment.The procedural law control of fiscal transfer payment is a rising problem these years in the area of financial payment law, and its legal construction and legislative perfection have important theoretical value and practical meaning, so far, there is little concern from legal perspective and little achievement on the study of fiscal transfer payment system. Procedural law is the basic route of legal area to involve into the study of fiscal transfer payment system, but our country has not appeared the specific study in the way. The topic of this paper has foresight and challenge to some extent, with the hope of filling the blank of procedural law control of fiscal transfer payment system in our country. By the discussion of this paper, it could arise more attention of law academics to procedural law control of fiscal transfer payment. Therefore, the process of building up fiscal transfer payment procedural law system will be promoted, and the goal of realizing the rule of law will come true soon.