A Research On Tax Payment Guaranty

Tax payment guaranty is a system which many countries use in tax laws generally. Tax payment guaranty system of our country was stipulated in principle in the Law on Tax Collection and Administration and its Implementing Regulation, and was formulated in details by the Interim Regulations on Tax Payment Guaranty. However, the current tax laws do not clearly elaborate the legal character of tax payment guaranty, and do not yet establish a efficient institutional implementation system, which has caused many problems in the legislation aspects and in the practical areas.This article is an in-depth research on the ground of the existence of flaws in both theory and practice of our tax payment guaranty system. Firstly, on the basis of explicitly defining tax payment guaranty, the author chooses analyzing its legal character as her theoretical basis and starting point. From the two contrasting views in academic area, the author boldly presents her own view that the character of tax payment guaranty system embraces two interrelated aspects, i.e. Public and Private characters in form and in reality; thus tax payment guaranty system should be defined as a special legal system in tax law—"Give priority to the Public character but give consideration to both the Public and Private characters". So it is possible to establish the dual purposes of ensuring the right of national taxation and protecting the legal rights of taxpayers.Secondly, through carrying on the comparative analysis of guaranty system in tax laws and civil laws, the author studies the present situation of our system and then points out three major existing problems: (1)Problem from its origin--the ambiguity of its legal character resulted in its unsound legislative foundation; (2) Systematic defects—the system is inadequate in ensuring taxation or protecting the legal rights of taxpayers simultaneously, and it is more obvious in the latter; (3) Inapplicability of some regulations—there is a serious problem of"the substance is held in esteem and the procedure is made light of", so it is difficult to regulate in practice. Thirdly, the author brings up the basic ideas about how to improve our tax payment guaranty system and presents a structural design. The primary one is to use the method of administrative contract management to guide the legislation and application, and then the author demonstrates that the core of tax payment guaranty system should be based on the balance principle and procedure controlling principle.The balance principle is to balance the rights and responsibilities of both parties and seek their compatibility but not necessarily equality; the procedure controlling principle is to ensure the balance. Following the practices in developed countries, the structural design includes solidifying the basis of the system, resolving the positioning problems and supplementing the current regulations and regulating procedures. It may be a significant reform based on the common value and goal concerning improving our governance of tax regime by law both in substance and procedure aspects.