Study On Several Issues About Tax Evasion Crime

The current Criminal Law of our country gives comparatively specific prescriptions to tax evasion crime, however, because of the social and economic restriction to our legislative technique, the abstraction and generality characteristics of law itself and the complexity of tax revenue work, there are large spaces for theoretic discussion and yardsticks which are hard to handle in judicial practice. This article chooses to discuss the issues about the subject of tax evasion crime, the criterion of tax evasion crime, and indictments of tax evasion crime, which are controvertible fiercely in theories of tax evasion crime and difficult to manage in judicial practice. Chapter 1: Brief introduction to tax evasion crime. This chapter mainly discusses the legislative transformation of tax evasion crime in our country. The criminal legislation of tax evasion crime in our country experiences the processes from zero to appearance, from simple to concrete, from obscurity to clarity. Meanwhile, the article discusses and analyses the current conceptions of tax evasion crime, thus clarify their conceptions. Chapter 2: Issues about the subject of tax evasion crime. This chapter deeply analyses and proves four issues: the subject of tax evasion crime is the ordinary subject; withholding agent should not be the subject of tax evasion crime; illegal operators and privately owned enterprises or units should be the subject of tax evasion crime. Firstly, the criminal subject of tax evasion crime is generally considered as special subject in the study circle of criminal law, but in this article, it is regarded as ordinary subject instead of special subject. The main reasons are: fires, from the perspective of the Constitution, every citizen has the duty to pay taxes and can be the subject of tax paying, so he or she can be the subject of tax evasion crime. Here there is no special conditions and requirements. Second, from the perspective of Criminal Law, the subject of tax evasion crime can be enlarged from natural person to unit, namely, both natural person and unit can be the criminal subject of tax evasion crime; third, from the perspective of Tax Law, with the development of socialist market economy in our country, the subject of tax paying is becoming diversified gradually. Especially from the development of individual income tax, it isn't difficult for individuals to become the subject of tax evasion crime; fourth, from the perspective of taking particular legal obligation, the crime of violating particular legal obligation can also be ordinary subject. For example, the crime of divulging state secrets intentionally or though negligence violates the particular legal obligation of guarding state secrets, while its criminal subject is ordinary subject. Secondly, in current Criminal Law, the withholding agent is classified to the subject of tax evasion crime. Actually, from the original intention of setting up withholding agent in our Tax Law, its main aim is to resolve some problems that make tax collection inconvenient, that is to say, withholding agent's power to exercise collection of tax organs. Specifically speaking, the obligations are: withholding and report, tax money collecting, fulfilling tax withholding, so tax withholding agent should not be the subject of tax evasion crime. Thirdly, the essential view holds that illegal operator cannot be the subject of tax evasion crime. Starting from analyzing that illegal income is taxable, this article proves that illegal income is taxable from aspects of precedents in foreign countries, no legal prohibition and the ability of illegal income to take tax revenue, etc. and thus it demonstrates that illegal operator should also be the criminal subject of tax evasion crime. Fourthly, Explanations to Relative Questions Dealing with the Application of Concrete Law in Cases of Units Crime issued by the Supreme People's Court on June 18th, 1999 prescribed that, privately owned enterprises and institutions, which have the qualification of corporation and committed tax evasion crime, can be regarded as unit subject of tax evasion crime, while those with no qualification of corporation cannot be regarded as criminal subject of tax evasion crime. From the analysis of judicial explanation, this article believes the judicial explanations go against the Principle of Legality and the 30th item in Criminal Law. Therefore, all the privately owned enterprises and institutions can be the criminal subject of tax evasion crime. Chapter 3: Problems in setting indictments of tax evasion crime and the legislative improvement. This chapter discusses the indictments of tax evasion crime, and points out the defects and deficiencies of tax evasionindictments in current criminal law and puts forward the approaches to improve its legislation. Firstly, through the analysis of tax evasion indictment, three defects and deficiencies are existed: first, considering the "report notified by tax organs but refuse to report"as tax evasion modes lack rationality and feasibility; second, from the language logic structure of criminal items, "doing false tax paying report"is one mode of tax evasion measure together with other measures. Considering "false tax paying report"as a concrete tax evasion measure, has defects such as difficult to define the independence of its act; Third, specifically prescribe five criminal measures of tax evasion and form large "fringe region "to make no laws to follow for tax evasion crime. Next, for the problem of the existence of tax evasion crime, the article poses approaches to improve legislation. It mainly discusses the principles for extents of tax evasion crime in defining Criminal Law regulations, namely, the principle of social objective need, principle of preference essence with consideration to form; principle of combining Criminal Law and Tax Law. Then describe the indictment of tax evasion crime with void indictments. As for issues like what tax evasion is, and how many measures to evade taxes, they should be clarified in tax administration law and related legal regulations. Chapter 4: Problems in setting criterions of tax evasion crime and the legislative improvement. This chapter illustrates the criterions to set tax evasion crime, and points out the defects and deficiencies in current setting criterions and puts forward approaches to improve its legislation. Firstly, based on the analysis of applying amount plus proportion and standards and reasons for second administrative punishment, it gives deep research on the defects of the criterion. It chiefly can be put into two parts: (1) the defects and deficiencies of amount plus proportion. The leading manifestations are: first, violate the principle of equality, and lead to injustice of enterprises because of different scales and nature; second, provide rooms for taxpayers to evade laws. Taxpayers can avoid criminal punishment through artificially regulating to improve payable tax money; third, the principle of amount plus proportion cannot reflect the subject harm of the producer. The same amount tax money evaded by taxpayers with large amount of payable money andthose with small amount of payable money produce the same harm to the society; fourth, leaks are easy to appear in criterion of amount plus proportion; fifth, judicial organs have to face new problems in dealing with cases. (2) The defects and deficiencies of the criterion of second administrative punishment. Its main manifestations are: first, whether any of second administrative punishments can be upgraded to crime; second, whether second administrative punishments of different organs can be upgraded to crime; third, there's no restriction to taxpayers'name changing when taxpayers are given two administrative punishment due to tax evasion, and it is hard for tax organs to handle in actual operation. Next, as for the defects and deficiencies in setting criterions of tax evasion crime, the article poses the approaches to improve legislation. Setting criterions of tax evasion crime are established again according to principle of rationality and principle of moderate interference: first, cancel the compound criterion of amount plus proportion, apply the single criterion of amount, and choose a quota of over 10,000 Yuan as standard according to the status of social economic development; second, cancel the criterion of second administrative punishment, add "amount cumulative system of administrative punishment", namely, "those who evade tax again after punished by tax organs for evading taxes several times, will be punished according to the regulations of amount criterion and the total number of their evaded tax money".