Feasibility Study Of Taxpayers' Suits In China

To study the feasibility of taxpayers' suits is neither the mechanical copy of foreign experience,nor scholars unrealistic subjective creation.It's from the urgent needs of the judicial practice.Since in 2006 the case "Jiangshilin v.Finance Bureau of Changning " which is called "the first case of taxpayers' suits" occurred,in our country the legal scholars began to concern and discuss taxpayers' suits.Practice dilemma of taxpayers' suits and widespread illegal finance expenditure build an urgent need for our taxpayers' suits.For this reason,this paper chooses the topic of the feasibility study for our country's taxpayers' suits,and intends to solve four issues through research: first,the taxpayers' suits' quality,and second,the taxpayers' suits' necessity,and the third is the feasibility of taxpayers' suits,and the fourth is the stage problem of taxpayers' suits.The taxpayers' suits can be defined from board perspective and narrow perspective.From the board perspective,the taxpayer's suits are defined as injunction reliefs filed by the taxpayers,which means,the lawsuits brought by the taxpayer against the actions that infringe the public interest of the country and society,such as the unfair taxation system,unfair taxes collection,especially the illegal use of the taxes by the government authorities.Corresponding to the protection of the rights of taxpayers in three stages,that is tax legislation,tax collection and use of taxes,broad taxpayers' suits includes three categories :constitutional review,tax administrative proceedings and taxpayersPublic Interest Litigation.The category studied in this paper is the last one,that is,taxpayers Public Interest Litigation,the narrow taxpayers' suits.From the narrow perspective,the taxpayers' suits are defined as the injunction relief filed against the illegal spending of the public funds by the taxpayers who are residents of certain area.As one kind of administrative Public Interest Litigation,indirect interest and welfare of litigation purposes are the core feature of the taxpayers' suits.On the one hand,taxpayers as the plaintiff has no direct interest for the defendant administrative behavior.Because of the indirect repayment of tax in nature,or free form of tax,illegal financial expenditure which is mainly from taxes does not directly against the interests of each individual taxpayer in the form.But from the perspective of the provision of public goods or services,the plaintiff,as a member of the taxpayers as a whole,has indirect interest between him and the defendant administrative behavior.On the other hand,the taxpayer has the purpose of prosecution of public welfare.The use of tax is related to the quality of public goods and services.And the illegal finance expenditure of the government is against the overall interests of taxpayers.So the suit purpose of taxpayers is to protect not only their own private interest of taxpayers,but also the taxpayer's overall public interest.Taxpayers' interests are also enjoyed by all taxpayers commonly after winning.Theoretical basis of taxpayers' suits includes some aspects.In politics they are the social contract theory,popular sovereignty theory.And in economics,they are public goods theory,the theory of public finance,tax price theory.And in law they are the fair value of jurisprudence,legal nature of the tax laws,constitutionalism,power balance,and so on.These theories constitute the theoretical basis of taxpayers' suits.Through extraterritorial taxpayers' suits inspection,we can see that the generation of taxpayers' suits is related to the role of these mechanism.The analysis of the political,economic,law and other background conditions of the moment,along with the historic transformation of our tax law and promoting socialist construction of the rule of law,the litigation mechanism of taxpayers' suits has been cultivated.The base of the politics for the taxpayers' lawsuits is the social contract theory.In social contract theory,countries originate from the contracts,the social bases of the existence of the counties are the contracts executed between countries and its nations.The equivalent exchange relationship originated from the social contracts between the taxpayers as the citizens and the countries is the logical starting point of the taxpayers' rights,the obligations and rights of the countries and taxpayers generated from their equivalent exchange relationship.For the taxpayers,the taxpayers are entitled to require the governments to use the tax payments in according to the contracts(i.e.laws and regulations)after the tax payments are made,which means the tax payments shall be used to provide the effective public products and public services to assure “the safety of his/her remaining property after the payment of the taxes and he/she can keep or use these property to his/her satisfaction”,this is the taxpayers' rights of supervision on the use of the taxes.The base of the economics for the taxpayers' lawsuits includes public goods theory,public finance theory and tax price theory.The public goods theory reveals from the perspective of the economics that taxation starts from the taxpayers' needs of the public goods and ends with taxpayers' use of the public goods to his/her satisfaction,the protection of the rights of the taxpayers are the starting points and the purpose of the tax law relationship.According to the public goods theory,countries are the proper providers of the public goods since the public goods are inseparable for the effectiveness,noncompetition from the perspective of the consumption,the non-exclusion of the benefits.The income of the countries mainly originates from the taxation,citizens are entitled to the rights accordingly while they pay the taxes to use the various public goods provided by the countries;citizens can require their countries(or governments)providing the public goods,the quantities and the qualities of which shall comply with the contracts,so the citizens has rights to supervise the use of the tax payments.In the public finance theory,“public” still is the essential character of the public finance,hence,public has the reasons to pay enough attention to the quality and efficiency of the public goods provided by the governments,“public finance” necessarily requires to empower the taxpayers certain rights that they are supposed to have.Based on the public goodstheory,western scholars further proposed “tax price theory”,which expressly points out that tax is the price of the public goods provided by governments,the prices must be paid in exchange of the use of the public goods.Taxpayers,as the buyer,are the demanders and consumers of the public goods,who are obligated to make payments to countries for the public goods in the form of the taxes payments and are entitled to require the countries to provide the proper public goods.This is defined as“consumer's sovereignty” in the economics and “taxpayers 'sovereignty” in the tax fields.The base of science of finance and tax laws for the taxpayers' lawsuits includes the theory of legal relationship in taxation and the theory of the control of public properties under separatism of two kinds of rights.First is the theory of legal relationship in taxation.There had been disputes over the nature of the taxation laws from a long term,one is “power relation theory” and the other one is “debt relation theory”,currently the theory of tax debt relation is the general one.Legal relationship in taxation is the relationship that countries require the taxpayers to perform the debt in taxation,its nature is corresponding relationship between the creditors and debtors,it's the debt relationship in the public laws;it's a kind of equal relationship in laws.In the legal relationship in taxation,the rights of the taxpayers match to the obligations of the taxpayers,the power of imposition of the taxes of countries match to role and responsibility of the public service of countries,the rights of the taxpayers match to the power of the imposition of the taxes of countries.In the legal relationship in taxation,each party of such relationship has the right of requirements towards the other party.In the legal relationship in the taxation formed in the course of the imposition of the taxation,countries are the creditor,who exercise the rights of requirement of the imposition of the taxation,i.e.impose the taxation on the taxpayers according to the relevant laws and regulations;the taxpayers as the debtors should perform the debts paying the taxes.In the legal relationship in the taxation formed in the course of the use of the taxation,the positions of the creditors and debtors exchanges,the taxpayer,as the creditors,are entitled to the rights to require countries to provide qualified public goods and publicservices;countries,as the debtors,have the debts to provide the public goods and public services to the taxpayers in accordance with constitution and laws.In modern society,laws are based on rights;the rights of the taxpayers also should be the base of the legal relationship in taxation.The second one is the theory of the control of public properties under separatism of two kinds of rights.The rights of properties are divided into the rights of public properties and the rights of private properties,which is the division of the natures of the rights from the perspective of constitution.The separatism of two kinds of rights is of great value in the fields of the constitution and the laws of finance and taxation,it closely relates to the constitutionalism,especially it is the important premise of the fiscal and taxation constitutionalism.Comparing to the traditional financial power,public financial power focus on the substantial nature of the properties,it emphasize the public nature of personal properties obtained by governments,ultimately speaking,the public properties are arising from the personal properties.Whether the rights of the public properties are used for the “public” purpose after its formation has great impacts on the personal properties,and just because of this,public property is a kind of the public power which should be controlled.The rights of the public properties focus on the boundary between the public properties but also on the process that the personal properties convert into public properties and the control and use of the public properties after conversion.The control on the rights of public properties shall follow the legalism and shall be secured by necessary legal reliefs;taxpayers 'lawsuits are one of such reliefs.As a kind of the senses of modern democratic politics,constitutionalism has plentiful connotation.The system of the taxpayer's lawsuits studied here reflects the constitutional senses.The constitutionalism is based on the social contracts.At the beginning of the formation,the constitutional thoughts reflected the limitations on countries 'power of the taxation;such limitations are imposed by the taxpayers in the way of the contracts.Legalism is the base of the constitutionalism.Legalism is meant to regulate and limit the power of the governments and guarantee the rights of civil rights.The power of taxation is a part of the power of the governments,Restriction on the power of taxation is the required by ruling the country by law and administrating by law,which is also the kernel of taxation by law.Restrictions on powers are the spiritual substance of constitutionalism.The taxpayers' lawsuits not only reflect that the judicial powers restrict the administration powers,i.e the public power's restriction on the public powers;but also reflect the private rights' restrictions on the public powers,i.e.the rights of the taxpayers restrict the power of the use of the taxation of the governments,which can compensate the weakness of the supervision within the systems on the powers so that the proper use of the taxation can be ensured.The constitutionalism requires enhancing the implementation of the constitution.The rights of the taxpayers are originally arising from the rights stipulated in the constitution.Therefore,enhance of the implementation of the constitution,safeguarding the civil rights and restrictions on the administration power are especially critical to the formation of the system of the taxpayers' lawsuits.The subject of taxpayers' suits is the public expenditure behavior.Government finance is a kind of finance,which is an economic method facing the society;meanwhile,it is kind of administration and must fulfill the politic functions of the countries.Government finance is the economic bridge and links between countries and societies;which reflects the economic relationship between countries and societies.Different economic systems correspond to different systems of countries and governments and form different relationship between governments and economy,the system of the government finance is determined by social economic system.Different types or modes of the government finance appeared in history,however,only the expenditure of the government finance in the system of the public government finance can be the object of the taxpayers' lawsuits.Public government finance has three features as following: firstly it's public,i.e.public government finance focus on meeting the social public needs;secondly,it's non-profitable,i.e.the purpose of the government finance is to seek social public interest instead of directly seeking market profits;thirdly,it's legal.Market economy is legal economy.As the direct activities of the governments,government finance shall be restrictedand regulated by the laws.Just because of the above characteristics of the government finance,the expenditure of the government finance itself inherently requires the control by law.For the legal nature of the expenditure of government finance,on one hand,the expenditure of the government finance is the balance between powers(rights)and the obligations.In the legal relationship of the expenditure of the government finance,the subjects of the expenditure are corresponding to the receivers of the expenditure.The subjects of the expenditure are the authorities,organizations that are authorized by the constitution or laws to control the governments' revenue following the legal process within the scope of authority.While the receivers of the expenditure are common citizens.Expenditure of government finance manifests itself as the operation of the powers and has direct influence on the rights,but at the same time,the legality and the restrictions of the powers shall be paid attention to.On the other hand,the expenditure of government finance is the combination of the public laws and private laws and which transcends the public laws and private laws.As the intervention of national financial power and the legal base that regulates the basic rights(such as the rights of national properties)and the private economic activities,expenditure of the government finance is of the nature of public laws,however,at the same time,it reflects the debtor-creditor relationship between the countries and nations regarding the public goods,the nations are entitled to require and the countries are obligated to the provision of the public goods and public services.Based on the features of the power nature and the relevant jurisdictions that the expenditure of government finance affiliated to,imposition of the legal control on the power of government finance expenditure to supervise the performance of its obligations and restriction of the power in public laws exercised by governments relating to the expenditure of the government finance with the rights in the private laws enjoyed by the taxpayers are necessary and reasonable.The taxpayers' lawsuits are restraining the power of government finance expenditure by the rights of the taxpayers.The taxpayers' lawsuit is a kind of the administrative public lawsuits;the precondition of the public interests litigation is the public interests standing whichdirectly determine the scope of the litigation subjects and the source of the rights,i.e.citizens or organizations are entitled to require the courts to exercise the judicial authority to protect the public interests from infringements.Public interests' standing is the right of claim to the substantial rights;consequently,the rights of taxpayers to bring the lawsuits are substantial rights originally based on his/her identity as a taxpayer.As a suit to restrict public power through private rights and one kind of public interest litigation,the primitive rights of taxpayers' suits is supervision rights to the use of tax.The traditional rights of the taxpayers were defined in the process of the collection of the taxes,i.e.the rights that taxpayer enjoyed when he/she performs his/her obligation to pay the taxes,which is contrary to the power of taxation collection and management.However,this theory broke up the inherent relationship between the collection and use of the taxation.The rights of the taxpayers enjoyed in this level are only can be the origin of the rights to bring the administrative lawsuits at the most;which cannot be the origin of the rights of the taxpayers to bring the taxpayers' lawsuits(as special administrative public interests litigations).As a public interests litigation using the private rights to restrict the public powers,the origin of the taxpayers' lawsuits is relating to the rights of supervision on the use of the taxation,and it is also relating to right of the taxpayers to know the use of the taxation,since the right to know is the precondition of the exercise of the supervision right.Taxpayers' rights of supervision on the use of the taxation,from the jurisdiction of view,it is the taxpayer's right on tax law;from the right level,it is the constitutional right of taxpayers;from the right nature,it is right based on taxpayers identity;for relief from supervision rights to the use of tax,it is a public proceedings right;from the source of law,it is private right existed in public law,or "public right." The taxpayer's right to know is the guarantee of supervision rights to the use of tax.In modern tax countries,taxpayers are the masters of the country.Supervision rights to the use of tax is the proper meaning of democracy and the rule of law.The taxpayers' lawsuits are not without foundation,it is the inevitable outcome of the transition of the tax laws and the systems of the government finance in theprocess of the transition of the economic systems and politic systems,it is the historical choice of the safeguarding of the rights of the taxpayers and the judicial reliefs under the concepts of the modern tax laws,systems of the public government finance and market economy system in the democratic and law-based society.While,with the historical transition of the financial and tax laws and the promotion of the construction of the socialism governments ruled by law,current backgrounds,such as politics,economics and laws and orders,have bred the construction of the mechanism of the taxpayers' lawsuits.Firstly,the position of the taxpayers has been elevated against the background of the transition of the market economy system.The governments is changing into the service governments,responsible governments and law-based governments from the all-round governments,while taxpayers as the market players starts to pay more attention to the protection of their own rights and interests,including supervise if the government finance income is used for people;taxpayers are playing a more and more important role in the interaction between the governments and the markets.Secondly,the target of the public government finance system has been set up in the course of the transition of the finance systems.The system of the taxpayers' lawsuits have become the objective needs of using the civil rights to keep balance with the public powers of the governments to legally control the expenditure of the public government finance.Thirdly,the sense of the tax laws has been updated in the historical transition of the tax laws in China;currently the theory of tax debt relation is the general theory.The value orientation of the tax laws is changing to “the laws of rights” from the “laws of the collection of the taxes”,the definition of the function of the tax laws gradually transit to “attaching importance of the protection of the rights of the taxpayers” from “national interests are paramount”whose sole target was to ensure the governments revenue originally.Fourthly,the consciousness of the rights of the taxpayers has risen with the progress of the democracy and legalism;the cultural tradition of non-lawsuits is changing with the implementation of legal education programs and the progress of the progress of the construction of the democracy and law-based governments,protecting their own rights and interests in the way of bringing lawsuits is becoming their consciousactivities.Current backgrounds,such as politics,economics and laws and orders,breed the construction of the mechanism of the taxpayers' lawsuits.The construction of the systems of the taxpayers' lawsuits is arising from the safeguarding of the rights of taxpayers enjoyed and the needs of the current conditions of the government finance expenditure.The lack of systematic of taxpayer rights theory,the irregularity of the basis of rights protection,the lack of operability in right content,as well as the present situation of fiscal expenditure of chaos and weak supervision means,put forward the urgent demand for the construction of our taxpayers' lawsuits.Construction of the systems of the taxpayers' lawsuits has following meaning: firstly,it provides the ways of reliefs to the rights of the supervision on the use of the taxation to the taxpayers,which is to fully protect the rights enjoyed by the taxpayers from the proactive standing and in the active ways,this reflects the laws' response to the necessary needs of the developments of societies;secondly,as a way of the supervision on the government finance expenditure,the taxpayers' lawsuits can restrict strongly and supervise the public power of the governments to spend the government finance because the judicial authority(as a kind of powers in public laws)is introduced into by the privates,and can promote the real construction of the systems of the public government finance;thirdly,from the perspective of the construction of the countries ruled by laws,the taxpayers' lawsuits are helpful to promote the implementation of the constitution,the administration by laws and rule the country by laws.Administrative Public Interest Litigation in practice often ends with the plaintiff's losing,the taxpayers' suits as well.The reason is that there are legal obstacles for taxpayers' suits.The first is the source of the right to appeal the taxpayer welfare.How can the plaintiff obtain the right to appeal as "individual" to the violations of taxpayer interests "as a whole" ? Second,the plaintiffs' qualification and range of taxpayers' suits.The key is how to break the existing "interest litigation" and "proper party" theory,how to interpret the "legal interest " between the taxpayers and the conduct complained of.The third obstacle is the legal basis oftaxpayers' suits for proceedings operations.For taxpayers' suits,the prosecution of the case,the admissibility of the trial,the verdict must be done according to the law.But the current law has no express provisions.Despite the lack of specific applicable legal basis,there are still provisions found in the existing law which can justify taxpayers' suits.Tax is as a deprivation of citizens' property.So the government has the duty to use tax for citizens' interests.The constitutional regulations,that citizens' legitimate property rights are not violated property,implies that citizens have the right to seek remedies for illegal use of tax.The constitutional regulations,that citizens have rights to appeal to the relevant national authorities,charge or exposes,also implies the taxpayers are entitled to supervise the illegal conduct of the use of tax.Though the positive sense of taxpayers' suits at the same time,there should be clear boundaries to build our taxpayers' suits.First,the legal conditions of taxpayers' suits is immature.In constitution as the fundamental law,there are no the basic rights of taxpayers.Public interest litigation in the civil case is still under exploration,the legal difficulties taxpayers' suits faced can't be overcome overnight;second,the difference between executive power and judicial power requires that judicial power maintains an appropriate reason and restraint.From the perspective of rational allocation and effective operation of the rights and powers of the country as a whole system,the private rights of citizens,the executive power of the executive,the Court's jurisdiction,should have a reasonable boundaries;and third,the emergence and development of taxpayers' suits is inseparable from the particular history and social background.The feasible extent of taxpayers' suits should be subject to a variety of factors,such as the social system of the state,social development,social structure and and culture.Now in our the tired litigation psychology for "people suing government officials" still widely exist.And awareness of the rights of taxpayers are not fully awakening.Many people are obsessed in "free rider".Moreover,judicial resources is limited.Possible abuse of taxpayers' suits should be considered.So our taxpayers' suits should be gradually builed:First,with regard to the plaintiff qualifications,we should insist unity of moderate expansion and the necessary limit.From the legislative economic principles,as current expediency,judicial interpretation of "legal interest " can be expanded to give "legal interest " between the taxpayer and the conduct complained of;to avoid waste of judicial resources,if the illegal administrative has already been prosecuted,others can not prosecute again;the scope of the plaintiff is limited in two categories: civic and social groups.Second,with regard to the scope of accepting cases,we should insist unity of legalizing and typing.In the beginning,the scope of accepting cases should be narrow.According to standards of plaintiff's request rights,the scope could be considered in two categories of cases: the government information disclosure cases;and cases to require to ban the illegal public finance expenditure,or to request a refund of illegal spending of public finance.According to the defendant eligibility criteria,case range of taxpayers' suits must be based on compliance with the administrative body that is regulated in the provisions of the Administrative Procedure Law.And the current cases scope should be limited within the range of local public expenditure.According to the administrative standards of conduct,administrative action of taxpayers' suits is illegal to public finance capital expenditures.And from the perspective of the stakeholders,the taxpayer is entitled to be limited within a specific geographical area.Third,with regard to the specific procedures designed,we should insist unity of protecting the right of appeal and preventing frivolous lawsuits.First,the pre-review process.The content of review before the appeal is whether the plaintiff adopted administrative remedies way;second,the limitation period.For taxpayers to report to other agencies,sue,the limitation period can be defined as since the date of receipt of the decision,or the decision not starting,date of expiry of the statutory or received within the specified time limit,within six months taxpayers can file a lawsuit;third,the burden of proof.According to the burden of proof of administrative proceedings,the taxpayer should prove the existence of the respondent executive focusing on the illegal public finance expenditure;fourth,theverdict form.In order to fully function taxpayers' suits,injunction verdict should be regulated at the right time through judicial interpretation and legislative changes;fifth,matching measures.On the one hand,in order to encourage more taxpayers to overcome the "free rider" mentality,to come forward to safeguard the public interest litigation,on the other hand,also in order to prevent the condition that after the proceedings start,the plaintiffs are free with the hearing,which causes judicial resources waste,the cost of litigation,margin,incentives,etc.should be regulated.