Tax On Property In The Context Of Constitutionalism

We are living in the time of "taxation country", where the taxation is essential to the modern country, especially the tax on property, as the ancient item of categories of taxes, has been seem as the main source of income of local country to promote the social justice. The entities in the tax on property includes the country and tax-payer, which the former play the leading role, so the important task before the tax law researchers is the balance between the restriction of the power of the country and safeguard of the individual rights. Ensuring the individual rights and balancing the conflict benefit between the state and individual is the essentiality of constitution, which is the magna charter"of modern country, the letter which cover the people right, uppermost status, so the significant job is the research how to restrict the state power to levy tax in the context of constitution, which is especially important to the china, which lax of the tradition of rule of law. The article tries to endeavor to touch upon the issue. China is devoting to the career of making better of socialist market-oriented economy, the academics has come up with many suggestions about the tax on property, whereas the attention mainly focuses on the micro-observation. On the contrary, the perspective of the article lies in the macro-observation of tax on property in the context of constitution, which in favors of the essentiality of common relation between the public power and individual right. the author conducts the historical and comparative method, combines the discussion of the 2004 amendment to the constitution, discovers the constitutional sprite of the tax on property, and advances the valuable the suggestions to resolve the present problems. Firstly, the article observes the constitutional history of tax on property, and comes to conclusion of the rule of tax law in the foreign country is the outcome of battle between the government and people. Whereas the phenomena didn't exist in the China, that is the absence of the rule of tax law, in spite of the abundant materials in the development of tax on property history. So the reasonable interpretation of the contrast is the close relation between the tax on property and constitutionalism, the battle between the government and people is the activator of modern constitution, and hereon the rule of tax law is the derivative. Secondly, the article discusses the condition of imposing the tax on property. Tax is legal deprival of property rights of the people. So tax law, to some extent, is the tort law. The key is the confirmation of right of private property to transform the tort law to conservation law. Understanding the key is to the point, because the right of private property is the pre-condition of Right of Life, safeguard of Right of freedom, and the important approach to create the domain far away from the government power. It's no doubt that the conservation of right of private property can inspire the potentiality of tax-payers and create more social wealth and development. The natural tendency of constitution is to safeguard the individual rights and confirm the status of private property right, which is the pre-condition of imposing the tax. The author discusses the essentiality of tax on property, analyses many viewpoints and brings forward the point, to the effect as the adage of "Without a sheep, there can be no wool". Also through the discussion of 2004 amendment of constitution, especially the relation between the article 22 and 56, we come to the conclusion that the accurateunderstanding the close relation between the above article in the amendment to the constitution is the key to master the constitutional spirit embodied in the tax on property. Finally, the article sums up the content of constitutionalism spirit, which has constituted the masterstroke, mainly covers the restriction of public power, safeguarding the right of tax-payers and establishing the standard and procedure of judicial review of violations of constitution. Through the discussion of the problems exist in the process of legislative, judicial and administrative activities, the article comes up with the countermeasures, include the clear delimitation of the borderline between the central and local government concerned allocation of imposing tax right, upgrading ranking of Chinese tax regulations, improvement of legislative quality, elimination of ambiguous and/or blanket provisions, prohibition the analogy or/and expanding interpretation in the judicial and administrative activities, restriction of administrative Precedent, case law and principle of retroactivity, which do harm to tax-payers.