A Probe Into The Transplant Of Subrogation From Civil Law To Tax Law

Engels once compared taxes to the wet nurse of the government. No doubt revenue is essential to nations and governments. We must quicken steps of the study and the discussion of tax law theories that started comparatively late to be seasoned with demands for comprehensive, harmonized and standing development of the economy. Then the effect of revenue will be fully brought into play to ensure the financial revenue and reinforce the function as the economic lever of macroscopical regulation.The revenue subrogation, a brand-new concept, is a transplant from civil law to tax law. The emendatory tax collection administration law of PRC (tax collection and administration law simplified later) passed by the 21st session of the 9th standing committee of NPC on 28th April, 2001 was brought into effect on 1st May, 2001. It used relevant regulations of foreign tax laws for reference and introduced the concept and relevant regulations of subrogation stated in contract law of the PRC (contract law simplified later) into tax law of our nation the first time. There are great theoretic value and objective practical significance of the research on it.With the transplant of subrogation from civil law to tax law as the cut-in point, combined with the characters of revenue, the author deepened the cognition of legal theories of revenue subrogation and practice of revenue by discussing the similarities and differences between creditor's rights of tax law and ordinary creditor's rights of private law, revenue subrogation and ordinary subrogation of private law. The author discussed the relationship between revenue subrogation and revenue priority, the exertion elements of tax subrogation, the exertion mode of it, efficacy of it and the litigation of subrogation. Based on the discussion, the author brought forward some suggestions about how to make revenue subrogation perfect.Chapter I the meaning of subrogation and revenue subrogationIn the first chapter, on one hand, author introduced the meaning of subrogation ranging from the origin of subrogation in France, relevant regulations in Germany, Spain, Italy, Japan and Taiwan Territory to theestablishment of subrogation system of our country and objectively analyzed characters and significance of it. On the other hand, author focused on the introduction of the research on the meaning and characters of revenue subrogation. The theoretical basis of revenue subrogation, the process of the birth, disputes, development and establishment of creditor's right and debt theories of revenue, was expatiated. The introduction of subrogation in tax law from contract law by the first time was especially regarded the milestone of tax law research despite of some disputes and difficulties in practical work. The creditor's right and debt theories of revenue had being accepted by scholarship of tax law and played an active role as a guide. Through the analysis of characters of revenue subrogation, we can see there are similarities among revenue subrogation, dealership, right of claim, right of form and right of administration, and essentially distinctions at the same time.Chapter II similarities and differences between subrogation of tax law and ordinary private lawIn the second chapter, we cut in with the characters of revenue as common benefits, subject particularity, legality, dependency of regime, particularities of methods of redress and representation. The similarities and differences between creditor's rights of tax law and private law were specifically analyzed. The concepts, theories, relationships and relevant regulations of revenue priority closely related with the practical operation of revenue subrogation were introduced. On the basis of it, author went deep into the similarities and differences among the legal facts, goal of subrogation establishment, adscription of results, operating subjects and manner and objects compared to ordinary characters of subrogation. Then author made sure that there was theoretical basis for the transplant of subrogation from civil law to tax law. At the same time,...