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On The Construction Of Statutory Taxation Principle

Posted on:2018-09-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:X Z LiFull Text:PDF
GTID:1366330542453509Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The statutory taxation principle,which is derived from the medieval England,is based on the theory of the constitutional democracy and human rights protection,and it is essentially a product of the right to transfer and centralized exercise after the tax contract signed between the state and the citizen,then in this paper,the tax contract theory is an instrumental theory of research questions,on this basics,we should pay attention to fill and improve the theory of tax law system by the theory of criminal law system and the theory of civil law system.Until now,the statutory taxation principle is stipulated in the constitution in many countries,however,it is still controversial whether it has a constitutional basis in China's academia,also under the concept of traditional compulsory tax liability in China,the concept of administrative management of taxation is deeply rooted,which bring out the process of legalization of taxation in China is difficult.Therefore,how to fully implement and establish the statutory taxation principle in our country's tax law system,along with constructing a complete and specific system from the two dimensions of formalism and substantivism with the core formalism of statutory taxation principle,is not only an important project to promote ruling the country by law comprehensively in the field of tax revenue,but also the fundamental requirement to achieve the modernization of national governance ability.Based on fully applying the statutory taxation principle,this paper focused on the contents and innovation as follows:(1)Based on analyzing the connotation and value of the statutory taxation principle in the context of China,this paper put forward the statutory taxationprinciple' performance in China combined with China's basic national conditions,as well as the current political background of the fully applying of the taxation legalism,through this,we will lay the primary pace and provide theoretical support to research the statutory taxation principle in the full text.First,the statutory taxation principle can be deconstructed two dimensions of power and right.It is the result of the game of civil rights standard and the state power.Therefore,it is based on the theory of constitutional democracy and human rights protection(including private property rights).Second,economic base determines the superstructure,so the discussion of the statutory taxation principle can not be divorced from the basis of economic development.China's market economy is the rule of law economy,and the statutory taxation principle can provide clear institutional basis and normative boundary for the benign intervention of the state power,so as to legalized,institutionalized improve the means of macroeconomic control,and ensure the universality,openness,clarity of the means,thus we can integrate the modern law spirit,such as fairness and justice,freedom of contract,with the market economy,therefore it can react on the implementation of the statutory taxation principle.Third,the statutory taxation principle should ultimately be reflect the dialectical unity of“China's national conditions” and “general rule”.In China's basic national conditions,the statutory taxation principle is an important part of socialist democratic politics,and the people's congress system is the main form of realizing the statutory taxation principle,then the concentrated expression is under the leadership of the party,innovating the people's congress system,and bring the statutory taxation principle into the system of administrating the nation according to the Constitution,and then balance the exchange of rights and power between people and state and the public appeal in the tax field.(2)In essence,the construction of the formalism of statutory taxation in ourcountry is the standardized construction of horizontal and vertical tax legislative power,so that we can improve the proportion of tax legislation,besides realize the de-administration of the tax legislation;Consequently,we may distribute the legislative power between the central organizations and the local government justly,in the premise that maintain the legislative authority of the central organizations and give full play to the legislative activism of the local government,after that,we are able to realize the statutory taxation principle run through the central-local law norms from top to bottom.Taxation is actually the central and local's power,besides,the tax's horizontal and vertical legislative power system construction is based on this theory.Firstly,the National People's Congress and its Standing Committee authorized the State Council's legislation twice,which is the main reason for the tax revenue legislation having administrative color.But undeniably,it is due to the actual needs of the legislature and the limitations of the legislature,as well as the contradiction between the exercise of executive power and the limitation of its own power that let authorized legislation have a path dependence that can not be replaced.Thus,we should improve and innovate it from the perspective of authorization clarity,the construction of feedback mechanism of filing review,the Information publicity of tax legislation and so on.Secondly,the central tax legislation has a limited rationality,that is to say,it can not fully reflect the individual differences' acting force in the process of voting in tax legislation.However,the individual local resources and the difference of tax source have a profound impact on tax policy in some particular places,so we should give full play to the local tax legislative initiative.This determines the feasibility of local tax legislation is the totalitarian mode,which means that tax legislative power concentrates on the central government,while we should absorb the rational factors of model of set and division,and appropriately devolve them to the local taxlegislative powers.(3)The construction of the substantive statutory taxation essentially is what the tax law should abide by the legalization of statutory taxation in the process of applying the law,the formalism of the statutory taxation principle only solves the legitimacy and legitimacy in the static legal system level.Institutional formalism is the basis of the implementation of the statutory taxation principle.The life of law lies in enforcement,so the truly meaningful statutory taxation principle should also be achieved the degree of dynamic substantive legitimacy,rationality in the process of applying the specific legal system,in the specific legal system to achieve the process of dynamic real legitimacy,the degree of rationality,in addition,we can also measure the lack of tax formalism,so the two complement and promote each other.first of all,on the basis of the principle of legality and the theory of criminal law explanation,we should ensure the application of the restraining tax law;secondly,we are ought to construct the legalization of tax preference legal norms,so as to limit the disguised legislation;finally,under the precondition of upholding the formal justice of statutory taxation principle,we can realize the substantive fairness of taxpayer's burden in the way of augmenting the substantive fairness of statutory taxation with the principle of ability to pay.(4)In the chapter of the legal basis of the statutory taxation principle and the structure of tax law system,we teased out the present legal basis of the statutory taxation principle in the “Constitution”,“Legislative Law”,“Tax Collection and Administration Law”,then in the precondition of referring to the law exposure draft and foreign constitution and tax basic law,this paper proposed the specific legislation of tax constitutionalism and tax basic law,then made a tentative idea on the structure of tax legal system which started with Constitution and then formed a unified internal system from top to bottom.(5)In the chapter of the uniqueness of the tax law and the setting of the statutory taxation principle,on the one hand,the conflict between the uniqueness of the validity of tax law and the concept of statutory taxation need to be corrected,such as the principle of “the special law should be adopted before the common law”in the application of the tax law violate the level of the validity of law;on the other hand,although as a public law,there are a large number of civil systems and theories in the tax law,at the same time,we can create the path of protection of the rights and interests of taxpayers and the state within the tax contract constrains in the way of civil relief,and we should abandon the public power concept of compulsory taxation,and try to reposition the conflict of rights and interests between the state and taxpayers as well as the legal relationship from the angle of private power and responsibility between the two equal civil subjects.Finally,the establishment of the statutory principle straightens out the logical structure of the internal system of tax law,so as to avoid the disorder of the tax legal system under the impact of civil system,which ensures the scientificity and rationality of the tax law system.
Keywords/Search Tags:statutory taxation principle, tax contract, constitutional democracy, human rights protection
PDF Full Text Request
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