Study On The Administrative Punishment Of Taxation

The administrative punishment of taxation is one of the important links of the administrative execution of taxation, part of the content of the tax authorities administers and manages the taxation by law and the important measure of assuring the correct enforcement of tax revenue laws and regulations. In this paper, by the use of the method of connecting the theory with practice, the systematic discussion is made on the concept, characteristics, setting and types of the administrative punishment of taxation of China, the relations between the administrative punishment of taxation and the criminal punishment as well as the basic principle of the administrative punishment of taxation, etc.. Based on the general theory, the intensive analysis is given to the problems and causes of the administrative punishment of taxation. With the integration of the practice of taxation, the perfect measures and assumptions are presented. In Chapter 1 of the paper, the concept and characteristics of the administrative punishment of taxation are analyzed. According to the case of no general introduction to the concept of the administrative punishment of taxation, a complete definition is given to the concept of the administrative punishment of taxation, which refers to the concrete administrative actions taken by the administrative subject of taxation giving administrative sanctions on the administrative object of taxation who should take the responsibilities of administrative laws in violation of the tax revenue laws, rules and regulations. At the same time, the four characteristics of the administrative punishment of taxation are illustrated, that is, the administrative punishment of taxation is a kind of administrative sanction. The subject enforcing the administrative punishment of taxation is the specific administrative subject of taxation. The administrative punishment of taxation aims at the actions violating the tax revenue laws, rules and regulations, infringing upon the national tax revenue management order and subject to the administrative and legal responsibilities, with those who violate the tax revenue laws, rules and regulations as the objects. In Chapter 2 of the paper, a complete introduction is given to the setting and types of the administrative punishment of taxation. The setting of the administrative punishment of taxation refers to that the specific national agency first and independently stipulates the criteria of conduct of citizens, legal persons or other organizations and the administrative sanction measures when the criteria of conduct are violated in a certain form. According to the regulations of the Administrative Penalties Law, the setting right of the administrative punishment of taxation is divided into four levels. The National People's Congress and its Standing Committee can set various administrative penalties of taxation in the form of laws. The State Council can set the administrative punishment of taxation except limiting personal freedom in the form of administrative regulations. The local laws and regulations can set the administrative punishment of taxation except limiting personal freedom and suspending a business license. The General National Tax Administration, the local and provincial people's governments, the cities where the provincial people's governments are located and the people's governments of the bigger cities approved by the State Council can set the warning and fining in the form of regulations. The correct division of types of the administrative punishment of taxation is helpful to not only the tax personnel grasping the limits of authority and procedure of punishment as well as correctly exercising the right of administrative punishment of taxation but also the protection of the legal benefits of the tax management objects. According to some laws and regulations such as the Administrative Penalties Law and the Law on the Tax Collection and Management, the three big types and eight types of punishment of the administrative punishment of taxation are introduced one by one. In Chapter 3 of the paper, the relations between the administrative punishment of taxation and the criminal punishment are dealt with, which are the sanctions on the administrative violation of laws of taxation and the crimes of taxation, respectively. As far as the concrete infringed objects are concerned, they are different for the administrative violation of laws of taxation and the crimes of taxation. As far as the results are concerned, big differences exist in the administrative violation of laws of taxation and thecrimes of taxation. According to the administrative violation of laws of taxation and the crimes of taxation, the nation gives sanctions by means of the administrative punishment of taxation and criminal punishment. The fundamental differences between the administrative punishment of taxation and the criminal punishment exist in the five aspects such as the belonging of authority, the subject and ground for punishment, the punished object, the procedure followed by making the administrative punishment and the types of punishment, etc. Although the fundamental differences exist between the administrative punishment of taxation and the criminal punishment, they are related to each other in legislation, application and types of punishment. In the paper, it is advocated that the form of "administrative punishment"should be adopted in the legislative connection between the administrative punishment of taxation and the criminal punishment. In the application and concurrence, the offences of taxation violate not only the administrative regulations on taxation but also the criminal law, with the legal responsibilities of the criminals investigated in an all-round way; therefore, the form of punishment of "concurrent application"should be adopted and it is presented that the principles of "criminal priority", "no overlapping use of similar regulations on punishment"and "integration of different regulations on punishment"should be followed. The connection of types of punishment mainly includes the connection between fine and penalty and confiscation of the property obtained by violation of laws and illegal property and confiscation of property. Because both fine and penalty belong to the measures of economic sanctions and similar in content, the concurrence of them should be treated in the regulation of "penalty transferred to fine". However, the confiscation of the property obtained by violation of laws and illegal property and the confiscation of property are different in content and should be given the concurrent application. In Chapter 4 of the paper, the legal principle, the principle of justice and openness, the principle of integration of punishment and education and the principle of protection of relative human rights of the administrative punishment of taxation are completely dealt with to facilitate the explicit grasping of the connotation of the administrative punishment of taxation andguidance to practice. The legal principle of the administrative punishment of taxation includes three levels. The first is that the ground for punishment is legal. The second is that the subject of punishment is legal. The third is that the procedure for punishment is legal. The principle of justice two sides :one is that that the setting of punishment should be scientific; the other is that the application of punishment should be justice.The principle of openness requires that the regulations on making punishment on the offences and the facts and causes for punishment should be publicized, the identity of the enforcement persons should be shown and the decisions on punishment should be publicized when the administrative punishment of taxation is made. The principle of integration of punishment and education shows that the administrative punishment of taxation is not the purpose but the means. Only when the integration of punishment and education is insisted can the offences be effectively prevented, with the good social effects available. Without relief, no rights. Viewed from the nature, legal relations and purposes of punishment of the administrative punishment of taxation, the protection of the relative human rights is greatly essential. In Chapter 5 of the paper, the problems and causes of the administrative punishment of taxation are analyzed. The inadequacies of the administrative punishment of taxation of our country in legislation, enforcement and relief are pointed out. The assumption of perfecting the system of administrative punishment of taxation of our country is presented. At present, the inadequacies of the administrative punishment of taxation in legislation are represented as follows. The first is the lack of the unified definition of the administrative punishment of taxation, which results in the confusion in recognition. The second is that the legislation of punishment is sporadic, lags behind and the relevant legal system is imperfect. The third is the defects of the laws and regulations, including the extreme principles of laws and regulations, excessive right of discretion entitled to the tax authorities, lack of comparability of priority of types of punishment and their own self-contradiction of laws, which are not applicable in practice. The fourth is the prominence of emphasis of the lawmaking department and neglecting of the protection of taxpayers'rights. The defects in enforcement arerepresented as follows. The first is the mistaken understanding of laws and regulations, which brings about the disturbance in practice. The second is neglecting the adequacy and legality of taking envidence, which brings about the inadequacy of ground for punishment. The third is the existence of phenomena of emphasis of the entity and neglecting of the procedure. The fourth is the inadequate punishment and existence of the phenomena of replacing punishment by reinforcement and torture by punishment. The defects in relief are represented as follows. The first is the deviation of the tenet of legislation of the relief system. The second is the limitation of the range of accepting a case of the relief system, including that the inspection of the normative documents by the administrative reviewing law is passive and the inspection of the abstract administrative actions by the administrative lawsuit is completely repulsive. The third is the lack of independence of the relief agency (the reviewing agency). At present, the jurisdiction system of the administrative reviewing of taxation of our country generally carries out the supervisory mode of the internal administrative agency. The fourth is the existence of barriers of concepts and economy in fact. Because the administrative punishment of taxation is not only limited to the enforcement of punishment but a dynamic process of legislation, enforcement and relief, the measures should be taken to legislation, enforcement and relief, that is, the assumption of perfecting the system of administrative punishment of taxation of our country is to strengthen the legislation, standardize the procedure, perfect the system, strengthen the supervising mechanism, improve the quality of enforcement and perfect the relief system as well as protect the relative human rights if the system of administrative punishment of taxation is perfected, the ruling of the country by the administrative punishment of taxation is realized and the pace of managing the taxation is promoted.