| Interests underlying the laws play a role of the incentive and the end to all the performances. In the philosophy of laws, jurisprudence of interests has been used to serve as a method of legal interpretation by judges in individual cases with a long history. With the development of laws, jurisprudence of interest theory has gradually applied beyond as a way as mentioned above in the judicial sphere. Therefore it has become a basic legal theory widely adapted to and utilized by other departmental laws. It should be acknowledged that the theory of interests is of great value as a basic legal thought, and has become more and more active after absorbed by others. Just as per Professor Katou Ichirou, interest equilibrium shall be by no means limited to civil law, as all the matters concerned with legal judgments(legal interpretation) are relative to interest equilibrium, i.e. all the legal interpretations in respect to civil law, constitution law, criminal law, are referred to the relationship between morality and interest equilibrium, though it varies with different manners in different laws. Actually in addition to the fact that the interest theory functions mainly as legal interpretative ways and guidance for practice in civil and criminal laws, it plays a much fundamental role in the administrative and economic laws. For example, the equilibrium theory in the administrative law is borne as a basic thought in its modern edition, the scope of which has been spanned from legal interpretation to applications of law's area. It can be concluded therefrom that interest theory in the law is so strong that every and each departmental laws is concerned with specific interest to be adjusted and protected. Therefore, departmental law is able to establish interest theory of its own by themselves, which includes tax law without doubt. It herewith tries to interpret taxation system via interest thought and perspective in seven chapters as follows:Chapter 1 is a discussion on the interest theory's research logic in the tax law. Interest is the starting point of rational thinking, since all the activities of human being could not turn a blind eye on the interest from ancient human society. Generally speaking, though it can get clues of interest theory worldwide, the most significant contribution in this regard can be attributable to Utilitarianism and its proponent Jeremy Bentham, whose thought on interests, particularly delimitation of individual and social interest play an undeniable role for a further legal advancement. Interest thought of laws bears a clear academic evolution e.g. an tentative idea brought out by German jurist Rudolph von Jhering(with the famous saying” law as a means to an end”), a formal initiative in this regard by Philipp Heck from University of Tübingen(with the conflicts of interest jurisprudence), and a mature compilation collected by a prominent American legal scholar Roscoe Pound. With a macro view plus clarified logical thinking, Pound identified interests into three categories: individual, public and social interests, and additionally explores their protective scope and extents by laws, which makes a distinguished contribution to establishing of interest jurisprudence's main body. Thereafter interest theory has accumulated a solid theoretical background, and widely applied by civil law as well as administrative and criminal law etc, which is represented by a vivid growth of such though as “interest equilibrium”,“legal interest”and“interest balance”in respective departmental laws It is without question the same with tax law. Under tax law scenario, exploring interests is an indispensable viewpoint to obtain a better understanding tax historically and practically, i.e.a much more deep and practical understanding of tax law theory. In fixing research scope and subjects, tax law may also follow the path brought by Pound: interest classification?interest choice?fixing protective limitation?interest equilibrium?interest assessment. This can be taken a closer eye as follows: firstly, consideration should be taken into as of the transformation of daily interest into tax law interest, i.e. fixing legal protective limits after identify different interests; secondly, to make a choice confronted with interest conflicts; thirdly, to impose binding rules on the interest equilibrium to make sure a balance of interest. Finally endeavor shall also made to allocate interest rights in tax laws to realize a balance of interest.Chapter 2 is to discuss identification of interests in particular. Interest thought is extensively complicated in concept and also in itself, which means not only a transformation from routine interests into legal interests but also a special character in tax law needs assessing. The academic circle in East and West has not reached a consensus with its concept, mainly in the form of three opinions as such Subjective sense, Objective sense and Compromising sense. Generally speaking, Subjective sense does not acknowledge the objectivity of interests, while Objective sense neglect human being's subjectivity. Therefore, a Compromising sense is satisfactory enough in that it opines that interests with a subjective character exist objectively, and it reflects a relationship between subjects and objects, i.e.a connection with law. The classic proposition on routine interests, utilitarian interest and descriptive interests produced by jurist Philipp Heck inspires enormously to us to address this tough issue. That is, legal interest derives from routine ones, but only those which meet generosity, justification law protected worthiness can be turned into legal interests in the transforming process. Meanwhile if it occurred to tax law, due to tax law's special rational and unique aspects, the exploration should be made in two ways. First, it is about establishment of tax law's justification, i.e. a fundamental question of the reasonableness of imposing tax revenue. In this regard the obligation theory can be referred to, since under this theory the relationship between the nations and taxpayers is defined as a right-obligation one in public laws, i.e. the country is the oblige in public law, and the revenue interest, also a obligor's interest, is representative of obligor's legitimate benefits deriving from a democratic process. Second, it is about reasonableness and legitimate scope of tax levy. In this sense a due tax shall be levied in a wide, trustable and proper manner.Chapter 3 discusses a classified interest in tax law. It is well-known that delimitation of interests in the legal interest studies could never be neglected. Interest in tax law can be delimited hereunder with a trialism approach due to a convenient research and the fact of interest conflicts in practice. The property interests and revenue interests of taxpayers is the most fundamental ones in tax laws, while with the development of tax regime's civilization, public and social interests are more and more outstanding under the original dualism framework. After a prudential delimitation of interests, three various interests has been examined as follows. In the first instance, taxpayer interest encompasses property and personal interest. As far as the former one, it almost covers all the property benefits in taxpayer's civil daily life, and with a tax law's specific adversarial nature, taxpayer's legitimate property should be protected, e.g. tax shall not be levied randomly and its factors not easily changed without due process; the property shall also not be requisitioned. As for the latter, it covers taxpayer's personal and identity interest which is specialize in tax law with an extensive technique system designation. In the second instance, besides “national” interest(a kind of “non-proprietary interest”) similar to taxpayers' personal interest, country's revenue interest is mainly and most often a proprietary interest with a comparison of taxpayers'. Revenue interest is referred to levy or utility of revenues, which characterizes with compulsory and free nature, while national interest is related with country's honour, independence, freedom, completeness, i.e. kind of tax sovereignty to decide their own foreign related tax rules but without intervention from outsiders. In the third instance, in tax law social public interest has hammered up aimed at addressing the interest conflicts between nations and individuals. However as being a difficult concept, law social public interest, is not a collection of individual interest, not a branch of national interest, but a comparative complete concept abstracted from interest conflicts. From the perspective of legislation, it is common to acknowledge thereof in the law, though almost non of relative phrases can be found out in our tax rule system. Nevertheless it can be concluded here and there. In tax law, public interest contains protection of natural resources and “human resources”, improvement of public welfare and infrastructure and so on, which is most often typical of tax law's characteristics such as a special choosing scope, a various interest rate or a different favored form of revenuesChapter 4 positively examines the interest conflicts in tax law. It is carefully and prudentially carried out from the different viewpoint of individuals, nations as well as society. Firstly, as for the scope of taxpayer interest, there are couple of taxpayers in different meanings, such as, legal or economic taxpayers, narrow or wide meaning taxpayers, and also different localized ones, which leads to their interest respectively refers to different orientations. Take housing tax for example, various factors includes but not limited to localization, original housing structure in town, renting market etc will contribute to their interest classified. Secondly, in terms of national revenue interest, due to the fact that the interest conflicts arising from tier construction is undeniable, cases(Skyworth case and Yingtan City Income Tax case) are analyzed to find out that vertical conflicts in this regard between central and local governments and between the fourth tier beneath provincial government, in addition to horizontal conflicts in parallel government regardless a competitive status within provincial or municipal level beyond. Amongst the foresaid different government interest conflicts, the vertical aspect, as a projection of statehood in our current nation into tax regime, is most pivotal and outstanding problem. Thirdly, social public interest is thought to be a troublesome concept in this field, and this concept in tax law also presents a value choosing puzzle. Moreover, the benefited subject is hard to define, which renders the subjects of tax law's public interest a pending, take environmental tax revised from fees for example, it emerges a touch question from multi benchmarks and localizations. In conclusion, it is a complicated issue in tax law since not only conflicts amongst taxpayers, countries and society, but also within their inside conflicts, in the form of horizontal confront against and vertical interwoven status.Chapter 5 tries to find an approach for interest equilibrium theory. Interests in tax law need assessing and choosing by means of some kind of standard due to interest conflicts in various levels or perspectives. However taxpayers' interest, national interest and social public interest are so closely connected that their eternal purposes is to realize individual welfares. Although on one hand, it is hard to distinguish different form of interests in tax law, on the other hand, different interests are assimilated to be unified in essence. Nevertheless a priority of any one of the three aforesaid three kinds of interests will come up with a negative outcome. Thus it can be said that there is no priority interest in tax law. Social public interest as a collective individual interest and outcome of coordinated national and taxpayer's interests, is not taken into consideration in priority, but it is a production made from interest allocation, and also means a comparative balance. Since social public interest is resulted from such an allocation, this approach thereto shall be a natural thinking for balancing interest conflicts. In theory, all the conflicts or chaos develops naturally or compulsorily coordinate to make it, which means the interest equilibrium is a reasonable requirement for tax law's evolution. Under the circumstance of tax law, it embodies a balance of proceeding, which refers to assessing, balancing, choosing and coordinating and plays a role in legislation, judicature and legal enforcement. Besides, this approach is a continuously growing and revising to be more and more genuine.Chapter 6 focuses on a binding regime for interest equilibrium in tax law. When it is applied a great variety of factors shall be considered such as social background. To walk away from a mysterious unknown thought in a metaphysical or ambiguous status, a binding regime is supposed to be introduced to make a direction for that in respect of proceedings, extents or preferences, which can be summarized as follows. Firstly, legal cost and effect shall be analyzed. Since delimitation and performance of legal rights and obligations shall be referred to cost and efficacy, economic human being principle in economics can be applied after a amendment thereof. This is to say, applications of principle of “reasonable man” and bounded rationality as research approach, and discussions of legislation and complying with law costs and a wide variety of issues on efficacy via transaction cost theory in law, such issues as on economics, politics, society, culture etc. Meanwhile examinations on how to balance volumes of tax rules and sunk cost on choosing legal systems is preferred under the guidance of cost-efficacy principle. Secondly, the binding regimes come from the ability-to-pay principle in tax law, which refers to allocated justice and is centered on the realization of justice in levying taxes, which is a projection from the concept of justice in jurisprudence. The ability-to-pay principle of taxation comes across formal justice, equaling to pursuing for substantial justice, which could make a difference in correcting interest conflicts. Under this principle, “income” is the most appropriate benchmark to appraise the tax levy ability in modern society. However it shall not be overheating as a good tax regime shall be optimized. In addition, under ability-to-pay principle, the tax levy ability to be burdened shall be balanced in essence, which can be reached via levy different categories of incomes, or can be introduced progressive rate into in enterprise income taxation. Thirdly, the binding regime refers to proportion principle, which requires a necessary limit for the execution of government powers, and the extent of approaches applied for and purposes quested for shall be proportionally reasonable. Though it cannot be sought out in China's Constitution Law, proportion principle is widely utilized in tax law due to being a concept fundamentally mirroring notion of modern rule-of-law nation. Attention on this principles' application shall be paid to a first step to peruse whether legal purposes to levy tax comply with constitution law or not, and then a second step to m, make sure whether the manner of tax legislation is justified or not in light with the principle of properness, necessity and proportion in a narrow meaning.Chapter 7 is to discuss the realization of interest equilibrium in taxation. It is well known in law that interest is the basis and substance of rights and rights is the form of interest. Therefore interest equilibrium in tax law shall be centered on the allocation of taxpayers' rights and nations' power to levy tax. It has an enormous connection between interest equilibrium, social public interest and right(power) allocation, i.e. interest equilibrium is an approach and process, right(power) allocation is another expression of interest equilibrium, and also social public interest is an outcome of interest equilibrium. When it occurs to allocate rights to realize interest equilibrium, attentions shall be paid to : 1) settlement of interest conflicts in tax law with a balancing manner, which shall be presented in legislation and legal application though its core remains interest equilibrium in legislation;2) changes brought about by interest equilibrium in allocating taxation rule's paradigm. From an orthodox view of jurisprudence, equilibrium means a equal of subject's right, and furthermore such right can be against completely, which is not the case in tax law due to the fact that a different nature of rights between taxpayers and the country not only in quality but also in quantity, and an unequal legal status between taxpayers and governments concerned. Therefore interest equilibrium in taxation is of asymmetric as such that on one hand taxpayers shall be endowed with enough rights to safeguard their legitimate interest, on the other nations to maintain its power to levy tax in a final end to bind each other. As it refers to how to make tax interest balanced and relative rules allocated into come into realization, it carries out herewith in three aspects as follows: In the first instance, a premise shall be obeyed under interest equilibrium theory in taxation, i.e. to define the legal nature of tax law system. As none of rights or power can get rid of the full legal environment as well as the underlying effects deriving from traditional tax regime, tax regime, absorbing nutrients from practice, can only get long life in case of being harmonious with such an environment. In the second instance, great endeavor shall be made on one hand to advance taxpayer right reform deeply in a form of establishing their fundamental rights such as survival rights, property rights and equal rights, etc., and on the other to reform national taxation power to settle the prominent headache in the tax legislation and local government's taxation power. Last but not least, as for the developing paradigm for the future, it can be assured that in allocating power/right to levy tax not only “National Treasury-oriented” but also “Taxpayer-oriented” is not satisfactory enough to stand for the keynote view for modern tax law. Tax law is not a law on how to levy tax in efficient manner for the country, also not a right of law aiming at protecting taxpayers. In the opinion of interest equilibrium proponents, the right allocation in tax law can only base upon a compromise between the thought of “National Treasury-oriented” but also “Taxpayer-oriented”. |
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