The Theory Of Analogy On Tax Law

Levying tax is a state act. With the public power of state, part of citizen's property is enforced to be owned by the state for free. In essence, it has the nature of intervening and limiting people's freedom and property rights. Thus, compared with other law, it should be more strictly constrained by the concepts of the constitutional values, especially the basic rights. In 1215, the "Magna Carta" defined that without unanimous agreement of the whole country, the King was not allowed to levy a tax. The statutory taxation has gradually become the basis of constitutional system and the highest principle of the science of tax and law in the Western countries. However, does the Taxation Law necessarily indicate a ban on application of analogical method? The Theorists of Taxation Law has been arguing about it all the time. And the dispute of the theoretical understanding has caused confusion in the practice of tax law and the judiciary. Even a phenomenon that the same court often makes the opposite judgments. Faced with this confusion, we should make a thorough clarification.First, from the aspect of methodology, we must analyze the interpretation in law and the basic principles of application of analogical method in order to specify the basic logic of application of analogical method. On this basis, we should make further confirmation whether application of analogical method is opposite to Taxation Law, whether it is contradictory to the principle of democracy and stability of law. We should analyze how to apply application of analogical method to the different components in tax law. To make a complete theoretical understanding of the issue, I need to make further identification of application of analogical method theoretically. This paper attempts to save the above mentioned problems in order to find out the integrated theory of application of analogical method in tax law.Based on the above logic, this paper is divided into three main parts, that is, an introduction, four chapters and a conclusion. The introduction summarizes the basic theory and logical access of the controversial sides, and then indicates the themes of this paper. The opposite view to application of analogical method in theoretician of tax law is that legal principle of the tax revenue requires that application of tax law must strictly regulate "the scope of possible cognition" to differentiate analogical method, which bans on the principles of democracy to ensure the stability of the tax law. It uses the criminal law to explicitly prohibit application of analogical method. But the supporting side of analogical method holds that analogue doctrine does not violate statutory tax and is in line with the principles of democracy, and stability of law. To sum up, whether the method is applicable or not depends on the analysis on"the scope of possible cognition". In accordance with a writing practice, the paper indicates the researching logic, analytical framework, and researching methods.The first chapter makes an analysis on tax law interpretation and "the scope of possible cognition" from the perspective of methodology. According to the traditional view, the distinction between the tax law interpretation and application of analogical method standards is "the scope of possible cognition" that tax law defines. However, the paper believes that "the scope of possible cognition" simply can not afford to take such important task. A fundamental premise is that the text of law has never been a single meaning of the language. So first of all, the paper will make an understanding of the scope of the language. Second, the understanding of the scope of the text is different, along with the historically changing meaning of the words. Third, the understanding of language in the same period is different. Finally, on second thought, even recognizing that sometimes people just through law provisions to predict the consequences of their acts, but also, as envisaged in accordance with the difficult, the text may always remain consistent and predictable to uphold the "the scope of possible cognition", which will assure the predictability. The main reason is, on the one hand, people read the law in accordance with the "ordinary meaning" to understand. If"the possible meaning" goes beyond the "ordinary meaning", it still damages the "rational expectations" of people. On the other hand, although it goes beyond the"the possible meaning", people are still forecasting the possibility with the laws and regulations. Based on the above viewpoints, the so-called"the possible meaning" can not explain the tax law and application of analogical method. Chapter 2 contains four sections. Section I is internal logic analysis on the application of analogical method, in the basic sense that legal interpretation and application of the logic of a two analogical method Other than reasoning, the letter explained that the expansion explained that the system explained explain the specific purpose of interpretation is essentially analogize nature and rethink this traditional theory "analogize ban" proposition. On this basis, as the article points out, to analogize understanding, one can not explicitly prohibit analogize, analogize the other hand, should be properly bound and control. Therefore, the ban on analogize into: In recognition analogize can not be banned under the premise in the internal application of analogical method, how reasonable and practical standards, divided into "permissible analogize" and "prohibited analogize." This understanding into classes will not shirk its responsibility to the judges to justify any expansion of a legal. In particular, the right person is not conducive to the expansion. And the "permissible analogize" and "prohibited analogize" definition, required to type theory is to be achieved. Basic differences in philosophy and core values, Judgment is not entirely similar to the requirements of the agreement. While emphasizing the legal departments (such as the crime of statutory tax statutory), such "legal" is actually type (such as type of crime, tax type) statutory, Elements of such a clear and statutory requirements that constitute elements of the ban analogize; again. Compared to the legal concept of the closure, because of its open nature types can adapt to the complex and diverse reality. China generally makes its own visual thing, to get a grip on the overall. Moreover, as the types of "when" and "existence" of a bridge link, and "the essence of things" between closely related. This kind of realized the foundation found. Section III is an analysis of the essence of things. First analysis of the essence of things, and points out that the essence of things, the features of which are summarized things, ,as "there" and "when" of communication between the bridge Secondly, as the essence of things proposed legislation to reconcile with the legal procedures were found. Legal concepts and regulations correspond with the facts of life. Based on this, the essence of things is the legal interpretation of the benchmark, or even the function of the origin of the law, bound by judicial and administrative authorities in the application of the law, the decision of the legislature activities. Hence, "the essence of things" to provide a system for the type of foundation, finally, the article also scholars on the "essence of things" for a brief analysis of the criticisms, pointed out that although "the essence of things," there are certain flaws in the way of thinking. But this theory is a Justification for the establishment of law and order, especially in the shaping of the current spirit of the ruling by law in China. Beliefs of the people on the formation of the ruling by law are of special significance. IV first three parts of the comprehensive theory --analogize types of things -- so that the complete essence of the logic system is shown, legislators from the proposed legislation is "the essence of things" abstract and general way of life needed the state laws and regulations (the so-called The discovery law), the elements to constitute the basis of the type, posed by the different types of "spectral types of" real life to the full realization of the restructuring. This is the law-making and law enforcement in the inner logic of the process, analogical application of the theoretical method is also essential.On this basis, Chapter 3 of this paper analyzes the possibility of application of analogical method in taxation. Application of analogical method does not run counter to the basic philosophy and values of tax law. Instead, it is in a harmony with tax theoretical system, so application of analogical method is entirely possible. First, as a prerequisite for analogical method, administrative Law does not prohibit analogical method. Secondly, analogical method does not violate the statutory tax, which develops to emphasize on fair play. Thirdly, tax law and criminal law are fundamental different in the target, the basic concept and of value target. Fourth, tax evasion of the provisions of the tax law has the complementary nature which ensures the application of an analogical method. Fifth, fairness of tax is the most important value of tax revenue. The unfairness which is formed from the legal tax burden can compliment the law by the analogical method to achieve real fairness. Sixth, analogizing tax purposes to analogize not only does not violate democratic principles, but is in line with democratic principles. Seventh, analogizing tax law does not contradict the principle of stability and the ruling by law. Protection of the interests of the taxpayer is based on the equal treatment of taxpayers. The above analysis demonstrates that no reason exists to prohibit the application of analogical method, which is in line with the basic concepts and values in tax law.Chapter 4 analyzes the theoretical system of the analogical method which consists of two parts. According to the requirements of the different elements of the tax law, this paper presents the application of analogical method scope. Entities in the tax law practiced application of analogical method. However, it must be limited to the constituent elements of the tax laws. The tax law should permit procedures in method of analogue, determining the amount of taxes involved, in accordance with the substantive part of the tax law as determined. Tax law punishment is divided into tax penalties and administrative fines. China's tax penalty provisions are basically invoked penal provisions. The current penal regulations specifically prohibit analogize. So in principle, tax penalty is prohibited to use analogical method. But administrative law does not prohibit it. Thus strict application of analogical method should also be careful and prohibits the creation or aggravation of punishment of analogical method .The second part of this paper analyzes restrictive factors of analogical method based on the concept of tax law. First, Tax Justice restricts the application of analogical method. Secondly, the statutory principle put limitations on analogical method. Third, excessive principle has limited the application of analogical system. Meanwhile, inspection of judicial practice in other countries and regions can be found on measures to protect the rights of taxpayers. The most important way is to review the constitutionality of the system. In May 2004, the NPC Standing Committee set up legal record examine office. It is more important to review under the law, and PC, in particular the conflict and inconsistent with the Constitution. Analogical method examines the legality of the provision opportunity. Despite the inadequacies of the institution itself, the paper adopted the recommendations of the majority of scholars. Due to the improvement of China's tax law; we must review the constitutionality of the establishment of a genuine system which stands on the "constitutionality" of promoting tax law. Of course, it requires a fairly long period of time to process.The last part of the paper comes to the conclusions.The main innovation of this paper lies in the detailed analysis and thorough clarification of the application of analogical method in tax law, thoroughly destroying the view of distinction interpreting tax law and analogical method by the"possible scope of test meaning " from the aspect of methodology. Meanwhile, it suggests a new theoretical system. Through analyzing the consistency of analogical method and the basic concepts, the paper put forward a complete theoretical system of analogical method. More importantly, through analogizing, typing, essence analyzing, this paper proposes a complete logic system of essence -- typing -- analogizing. And the establishment of such a system surpasses the system itself, making the theory methodologically applicable and making sense to other kinds of law for reference.