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A Study On The Legislation Of Invoice Related Crimes

Posted on:2016-06-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:P F WangFull Text:PDF
GTID:1226330503951067Subject:Criminal Law
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Invoice related crimes constitute a complicated crime group in the criminal law of china. About invoice related crimes, there have been disagreements in theoretical discussion and difficulties in judicial application for quite a long time, which are unsolvable by criminal law explanation. Those problems and the serious situation of the continuous high rate of invoice related crimes, require us to shift approach to analyze invoice related crimes from the perspective of criminal legislation. Based on those considerations, reviewing and summarizing the related researches, taking the disagreements in theoretical discussion and the difficulties in judicial application as start point, using methods such as systematic method, value-analytical method, et cetera, we attempt to launch a comprehensive systematical research in the voice related crimes in China, hoping to provide some new thoughts on the related theoretical researches and judicial practices.As a usual commercial voucher, invoice has two major functions: proof function and tax-control function. It is the functions of voice that are used criminals to commit crimes to make unlawful profit. Different functions used constitute different charges; the number of functions used decides the number of charges. The 1979 edition of Criminal Law didn’t set a special criminal charge for invoice related illegal acts, instead, punished the invoice forgery with the ‘crime of voucher forgery’, and punished the illegal resale of invoice with the ‘crime of illegal speculation and profiteering’.As to setting a special name of Invoice Related Crimes through criminal legislation, the back ground was the 1994 reform of taxation. Back then vale-added-taxation was implemented to control taxation with invoice, as the only basis for the amount of input tax, value added tax invoice could deduct the payable tax. It is this special deduction function that made ‘thin invoice’ more valued than money and instigate lawbreakers to become reckless to seek unlawful exorbitant profits, resulted in a unprecedented high rate of invoice related crimes.In order to punish and crack down the rampant invoice related crimes, police, taxation department and judicial department joined up and launched several special punishing and fixing activities, on the other side, the NPC Standing Committee passed a special criminal law, aiming at invoice related crimes, added 11 criminal charges including falsely making out special invoices, forging invoice, illegally selling special invoices, stealing special invoices, fraudulently obtaining special invoices, providing a new legislation basis for severer-heavier cracking down and punishing invoice related crimes. When Criminal Law was revised comprehensively in 1997, above mentioned criminal charges were slightly revised and included in current criminal law, putting under Chapter 3 ‘Crimes of Disrupting the Order of the Socialist Market Economy’, Section 6 ‘Crimes of Jeopardizing Administration of Tax Collection’. Criminal Law Amendment 8(2011) had two additions and two deletions concerning invoice related crimes: deleted the death penalty application in Article 205 ‘Crime of Falsely Making Out Special Invoices for Value-added tax’ and Article 206 ‘Crime of Forging Special Invoices for Value-added tax’, added ‘Crime of Falsely Making Out Invoices’ in Article 205 and ‘Crime of Holding Forged Invoices’ in Article 201. Till then, there are 13 invoice related charges in current criminal law.Even though we have so many invoice related crimes in legislation and severely crack down on invoice related crimes in judicial application for 20 years, till today, invoice related crimes are nevertheless on a continuous high rate and constitute an outstanding problem. To make the situation even worse, since the invoice related crimes were legislated, there have emerged in judicial application many difficult problems such as ‘is it crime or not’, ‘does it constitute this crime or that’, ‘does it constitute one crime or several crime’, and so on. For instance, do acts such as making out invoice mutually or circularly constitute crime of falsely making out special invoice for value-added-tax? Do acts such as evading tax, defrauding export tax rebate, embezzling, misappropriating, smuggling, or defrauding to get loan with falsely made out invoice constitute crime of falsely making out special invoice for value-added-tax or crime of tax evasion or other related crimes? Do they constitute one crime or several crimes? Compared with others, acts of evading tax by means of falsely making out invoice are punished so much more severely in judicial practice, does it mean they do much more harm to the society? Is it reasonable set penalties like this? Those problems mentioned above formed not only serious disagreement in theoretical discussion but also inconsistency in judicial practice. Especially revolving around the crime of falsely making out invoice for value-added-tax there emerged so many contradictions and difficulties, hard to get compromise between opposing opinions. Approaches from the angle of law explanation cannot solve those problems. In this situation, we have to switch approaches and analyze radically on the level of criminal legislation.To carry out research from the perspective of criminal legislation, we need the guidance of criminal legislative principle. After summarizing the criminal legislative thoughts and principles, we sum up three basic principles: principle of necessity, principle of reasonability, principle of science. As for the special principles for economic criminal legislation, we propose two special principles: principle of prospective, principle of penalty lightening. Principles mentioned above will be the theoretical basis for our observation in criminal legislation.From the angle of legislation, the stipulations about invoice related crimes in the current criminal law have meticulous crime setting and the penalties are heavier than crimes of the same nature. The major problems are as follows:I. The classification of invoices in current criminal law runs against the basic logical rules for classification. Aiming at invoice which is but one object of crime, current criminal law make divisions of four categories which are ‘special invoice for value-added-tax’, ‘invoice used to defraud a tax refund for exports’, ‘invoice used to offset tax money’ and ‘common invoice’, although those four categories are not divided on the same conceptual level with the same standard. This classification does not comply with the logic rules such as ‘division must by the same standard’, ‘divisions must on the same level’, ‘the sum extension of all partial items must equate the extension of the whole item’, and ‘there should be no overlap between the extensions of partial items’. Functionally speaking, special invoice for value-added-tax can also be used as common invoice; both special invoice for value-added-tax and other invoices used to offset tax money(the so called ‘four small voucher’) belong to the category of invoice for value-added-tax, even though the taxation rate differs but the offset functions are the same; specially problematic is the concept of invoice used to defraud a tax refund for exports, since special invoice for value-added-tax can be used to fraud a tax refund for exports, common invoice can also be use for this purpose, there is no invoice which can not be use to defraud a tax refund for exports, this conceptual category is not scientific at all. So we can see, the classification of invoices in current criminal law does not comply with the basic logic rules and makes logic mistakes such as ‘classification by multiple standards’, ‘classification across levels’, ‘redundancy of partial items’, ‘overlaps between partial items’.II. Besides the classification of invoice mentioned above, current criminal law also bases on the differentiation of authentic and false invoices, sets criminal charges for every related link of the process, results in a falsely recursive situation and a over complicated huge system of invoice related crimes, does not comply with the legislative requirement of conciseness in setting criminal charges.Invoice related crimes in current criminal law include 13 crimes, and many of them are selectable criminal charges as following: crime of falsely making out special invoice for value-added-tax and crime of defrauding a tax refund for export or offsetting tax money are set for the link of making out invoice; crimes of forging special invoices for value-added-tax or selling such invoices, crimes of unlawfully purchasing special invoices for value-added tax, crimes of making without authorization invoices used to defraud tax refund for export or to offset tax money, crimes of making without authorization invoices or selling such invoices and crime of unlawfully selling invoices are set for the link of making and selling link; crimes of unlawfully purchasing special invoice for value-added tax or purchasing forged special invoices for value-added tax are set for the link of unlawfully obtaining; crime of possessing forged invoices is set for the link of possessing; crimes of malpractices for personal gain in selling invoice or refunding tax or offsetting tax money for the link of selling and inspecting. Aiming at one object of crime, current criminal law set too many crimes from different angle, lack of generalization in legislation, occupying the rare source of criminal legislation, and lead to man-induced complexity in judicial application an research.III. To set a certain crime for the link of making out invoice is the result of a not clear understanding of the nature of falsely making out invoices, and the result of many misunderstanding in legislation, leads to quite a lot disagreements in theoretical discussion and difficulties in judicial application, runs against the principle of legality.The refinement of legislation on invoice related crimes in the separate criminal law of 1995, based on a splitting of invoice related crimes regulated in the criminal law of 1997, added the crime of falsely making out special invoices for value-added tax and the crimes of using such invoices to defraud a tax refund for exports or to offset tax money for the link of making out invoices. The addition of this criminal charge, led to some difficulties in making clear the situations of crimes or not, this charge or that, one charge or several, and therefore initiated the debating on the nature of the charge of falsely making out special invoices for value-added tax, represented disagreement in many theories such as the theory of consequential offence, the theory of Absichtsdelikte, the theory of offence of act, the theory of offence of abstract danger and the theory of potential danger; and caused different standard in judicial explanation and different result of judicial application.We have reason to say, the link of making out invoices is the must-be-through link of invoice to fulfil its functions, to make the act of falsely making out invoices for value-added tax as a separate criminal charge will inevitably result in the implicated offence or joinder of offence between the charge of falsely making out 6 special invoices for value-added tax and other charge of invoice related offences. Checking out with the three major principles for criminal legislation, we can find out the problem in the criminal charge setting of crime of falsely making out special invoices for value-added tax; the penalty is too heavy, which does not comply the principle of lightening penalties for economic criminal charges. Making up the required elements proposed by those theories mentioned above, we can find out that no matter we treat the crime of falsely making out special invoices for value-added tax as Absichtsdelikte, consequential offence, offence of act, or offence of danger, the problems of the implicated offence or joinder of offence between the charge of falsely making out special invoices for value-added tax and other charge of invoice related offences cannot be solved comprehensively. Therefore we can find out that the crime of falsely making out special invoices for value-added tax is not a problem which is solvable by legislative techniques, we need to retreat to get a vantage point and check out whether making the falsely making invoices a criminal charge comply with the principle of necessity.Through summarizing the legislative back ground and history of the criminal charge of falsely making out special invoices for value-added tax, reviewing the legislative basis and principles, we can find out that the setting of the criminal charge of falsely making out invoices does not comply with the legislative principle of necessity, and there are several misunderstanding about legislation: firstly, the necessity of cracking down on crimes and the necessity of charging were mistaken as the necessity of addition of criminal charge; secondly, fractionizing in the setting of criminal charge is mistaken as scientific requirement; thirdly, aggravating the penalty of is mistaken as the effectiveness of the cracking down; fourthly, the prevention by criminal law, by administration are confused with the prevention with system; fifthly, the addition of crime of falsely making out invoices was the result of the misunderstanding which focus on part but overlook the whole. To sum up, the addition of crime of falsely making out invoices is a repeatedly charged, led into a false conflict.IV. There are problems in the related legislation such as the description of the chargeable facts is not clear, the legislative logic is not tight, legislative expression is not normalized, which makes the legislation running against the principle of legality.As to the description of the chargeable facts, For instance, the identification of falsely making out in the crime of falsely making out invoices, even though the forth item of article 205 says that ‘falsely making out special invoices for value-added tax or any other invoices to defraud a tax refund for exports or to offset tax money refers to nay act of falsely making out the said invoices for another, for oneself, or for asking another to do so for oneself, or recommending another to do so’, but those constitute only one classification of falsely making out invoices, as to what is falsely making out invoices, how to identify the acts of falsely making out invoices, there still some disagreement in cognition. On the other side, if we use a blank description of chargeable facts and describe ‘the crime of falsely making out special invoices for value-added tax’ as ‘violate the stipulation of taxation and falsely making out special invoices for value-added tax’, the identification of falsely making out invoices will be decided by the regulations of invoices, and the disagreement about the concept of falsely making out invoices will be solved.Concerning to the legislative logic, even though the invoice related crimes were fractionized, but led into the result of neglect, because if we only trying to fractionize the criminal charges, often get some loopholes. For instance, the 1979 criminal law stipulated the crime of ‘forging voucher’, which covered all of the facts of forging invoices, had not lead to disagreements mentioned above; so we suggest that if the current criminal law only set a charge of ‘unlawfully purchasing invoices’, there would be no contradiction mentioned above. In addition, current criminal law added the charge of ‘possessing forged invoices’, but in reality there are some situation in which unlawfully purchasing invoice does not constitute crime, it is to say, there is a logic problem here.Legislation of high quality requires the expression of law be rigorous, thorough and consistency. But the truth is that there are problems such as inconsistency in the description of the invoice related crimes. Taking the definition of invoice as a example, the extension of the invoice in the first item of article 205, the second and forth item of article 209 refers to the common invoice which has no function of offsetting tax money, but in the first item of article 210, the extension of invoice refers to all invoices which includes special invoices for value-added tax and common invoices. As to the use of ‘forge’, ‘making without authorization’, and so on, there are some divergence in cognition, so much so that some scholar arbitrarily explains the criminal law in the name of relativity of the expression.V. The setting of invoice related crimes as a whole has a tendency of being severe and does not comply with the principle of suiting punishment to crime and the principle of lightening for economic crimes.Comparing the punishments between different charges of invoice related offences, we may see that the same criminal act aiming at different type of invoices get quite different penalties: the heaviest penalty goes to the charges of criminal offences aiming at special invoices for value-added tax, the less heavy goes to charges of criminal offences aiming at invoices used to defraud a tax refund for exports or offset tax money, only the charges of criminal offences aiming at common invoices are punished at the same level of criminal offences aiming at other object. But the nature of offences used special invoices for value-added tax is not different from the offences used common invoices. This question is just like the question of ‘which is heavier, cotton or metal’, we can not conclude that metal is heavier, because one kilo of metal is as heavy as one kilo of cotton. In like manner, we can not conclude that criminal offences used special invoices for value-added tax entail more harmful consequences just because they have a higher rebate rate. On the contrary, criminal offences used common invoices to evade taxation could influence the revenue with 25% taxation rate, which is higher than that of the special invoices for value-added tax.Even though criminal law amendment VIII deleted the death penalty applicable to criminal charges of forging special invoices for value-added tax and falsely making out special invoices for value-added tax, but the punishment setting as a whole is too heavy. Especially now the nature of ‘tax report’ is identified as ‘demise of property’, so the acts of evading taxation are not treated as encroaching ‘national property’, and the penalties about crimes of evading tax were lightened in the amendment to criminal law VII, but the acts of evading tax by means of falsely making out special invoices for value-added tax are still punished heavily which runs apparently against the spirit of criminal legislation.VI. The arrangement of current invoices related crimes do not coordinate in the system of criminal law.Invoices related crimes, no matter seen from the angle of criminal charge setting or penalties setting, or talking about its position in the system of criminal law, is an abrupt existence. In comparison with other legislative pattern with the same abstract objects, the complication and triviality of the legislation of invoice related crimes are very outstanding. In addition, invoice related crimes which are put under the title of ‘crimes of jeopardizing administration of tax collection’, except that crime of falsely making out invoice represents as tax related crimes, other charges have no direct relation with the administration of tax collection. Crime of forging invoice belongs to crimes of forging vouchers, crimes of possessing forged invoices belongs to the crimes of possessing, crime of unlawfully purchasing invoices belongs to crimes of obstructing the administration of public order, crime of stealing special invoices belongs to crimes of property violation, and crime of falsely making out invoices is obviously a repetition of charge setting, belongs to crimes which should be deleted.The fractionizing setting of charges and the heavy setting of penalties concerning to invoice related crimes led to some problems such as joinders between charges and unbalanced punishment. Invoice related crimes represent an incoordinate feature which is like the situation of branch is thicker than trunk. The reason why this situation emerged was the inclusion of the separate criminal law as a whole into the criminal law of 1997, which led this incoordinate situation.To sum up the legislative analysis on invoice related crimes as above, we have proposals as below:(1) To delete Article 205 and the 1st item of Article 205, abolish ‘crime of falsely making out special invoices for value-added tax or any other invoices to defraud a tax refund for exports or to offset tax money’ and the crime of ‘falsely making out invoices’;(2) to combine the crime of ‘forging special invoices for value-added tax’, the crime of ‘making without authorization invoices used to defraud a tax refund for exports or to offset tax money’ and the crime of ‘making without authorization any other invoices’ to form one single charge: the crime of forging invoices;(3) to combine the crime of ‘selling forged special invoices for value-added tax’, the crime of ‘illegally selling forged special invoices for value-added tax’, the crime of ‘selling invoices which can be used to defraud a tax refund for exports or to offset tax money’ and the crime of ‘illegally selling invoices’ to form one single charge: the crime of ‘illegally selling invoices’;(4) in the respect of punishment setting, we propose to coordinate the penalty structure of the crime of ‘forging invoices’ with the penalty of the crime of ‘forging certificates’, and coordinate the penalty structure of the crimes of ‘illegally selling invoices ’ and ‘illegally selling special invoices for value-added tax ’ with the penalty structure of the crime of ‘selling forged certificates’, so as to comply with the principle of suiting punishment to crime;(5) we don’t agree with the proposal made by some scholar who propose to add crimes of ‘making without authorization special invoices for value-added tax’, ‘illegally purchasing invoices which can be used to defraud a tax refund for exports or offset tax money’, ‘illegally purchasing invoices’ and ‘purchasing forged invoices’. The setting of invoice related crimes are already to fractionizing, it is not good to add new charges. We believe with the development of the techniques of administration of invoices, invoice related crime will be suppressed. So we propose that invoice related crimes should be merged and simplified in the next revision of criminal law, lessened their punishment and incorporate them into the legislation of common certificate related offences.As an epitome of the criminal legislation in the transforming period of our country, invoice related crimes took shape in a separate criminal law, got mature in the comprehensive revision of criminal law in 1997 and got further completed in the Amendment to the Criminal Law VIII. The development history of invoice related crimes can be a representative sample for the research of the history of criminal legislation of our country. During the period of social transformation of our country, facing the profound change of the economic system, social structure and ethic values, facing the accumulation of social conflicts and disputes, and facing the emerging of the new type of criminal offences, how to overcome the traditional mythical belief in the omnipotence of law and the influences in ‘subconsciousness’ of the old concept idealism of intimidation of penalty, how to overcome the thinking pattern of replace the administration with criminal punishment, how to keep the scientific reason, we are still facing a serious challenge and oppression.Judging from the change of administration of invoice for the last 20 years and the periodic features of invoice related crimes, the norm of administration of invoice has a high correlation with the rate of invoice related crimes; the loopholes and weak links of the administration of invoice is the source of invoice related crimes, to strengthen and complete the administration of invoice, together with use of scientific techniques in the administration of invoice are the headstream and the most powerful and most radical means to suppress invoice related crimes.Last but not least, through this legislative observation into the invoice related crimes, we can reflect the whole situation from this corner and search the criminal legislative principles and discuss all kinks of question which emerge in practices. Up till now, current criminal theories lack of summing up and expression of criminal legislative principles, and in the legislative practices the importance of those principles have not received the deserved treatment. This dissertation proposes some new thought, hopefully they will be good for the theoretical discussion and practice of criminal legislation.
Keywords/Search Tags:invoice related crimes, criminal legislation, falsely making out special invoice for value-added tax, forging invoices, possessing forged invoices, principles of criminal legislation, techniques of criminal legislation, system methodology
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