On The Issue Of Identify For The Crime Of Evading Taxes

Part One boundary between crime of evading tax and ordinary tax evasionWhether the act of evading tax is crime or not will be illustrated in this part.The crime of evading tax should be seperated fron ordinary act of evading tax, for they lead to different punishment course and legitimate consequences. They differ in quality. Theoretically, ordinary act of evading tax harms the society less than crime of evading tax, and does not reach the concept of crime. Criminal Law in our country has established two criteria for executating crime in 201st term, that is quantity plus ratio and times For the stiterion"quantity plus ratio", I believe that it seems to be reasonable, but actually not scientific. Since this means of calculating could not get unified in practice,and furthermore makes possible for certain judicial personnel to bend the law by making legitimate"excuses"for executating subjectively. This legislative regulation should be abolished and whether commiting crime or not and the sebtence should be evaluated by the amount of invading tax.As to the criterion of"times", I think that legislative body regulates it in this way for the sake of human's subjective evil. But I have the ideas that this is regulated too severely so that it ignores the objectice harms of tha act. This regulation makes practical operation easy and is effective in preventing the judicial personnel from judging subjectively, but it goes to extreme and disobeys the law that subjecivity and objectivity should be unified.Part two the classification between the act of evading tax and ambiguous crimeThe problems of this crime and that crime in the kinds of crimes related to tax I mainly classify the crime of evading tax from that of smuggling ordinary goods, the crime of evading tax from fraud of exporting tax, the crime of evading tax from hiding, damaging accounting evidence,accounting books, financial accounting report.1.In practice, when a person is smuggling ordinary goods or objects, he usually has invaded both teriff and value-added tax and consuming tax. Different opinions exist in how to execulate. I think that this situation can be treated as merely the crime of smuggling odinary goods.2.for the situation of the tax-payer's freud in claiming exporting or other means to cheat tax more than what he pays , I think that the Criminal Act only regulates that it should be punished as crime of freud of tax and freud in exporting tax instead of punishing with all crimes together. Therefore, this situation should be treated as imaginary concurrence of crimes is punishable by heavier punishment,that is, the freud of exporting tax.3. the crimes of hiding, damaging accounting evidence, accounting books, financial accounting report ae new crimes added in the Amendament of Criminal Act of People'republic of China, which was passed in the 13th meeting of the Standrad Committee of National People's Congress on December 25th, 1999. in practice, it is common for the accounting personnel to disobey the regulation in retaining accounting books, accounting evidence ,and especially damaging them. We should not make rhem the same in dealing these situations. In my opinion, we can deal with them seperately:first, those that should be dealed with as ordinary illegitimate situation;second, fraud of exporting tax, the crime of evading tax;third, hiding, damaging accounting evidence,accounting books, financial accounting report.Part three the classification of only crime and multiple crimes in the crime of evading taxThis part is to illustrate the problem of the only crime of evading tax and multiple crimes in one act of evading tax.In judicial practice, it is difficult to dicide only crime of evading tax or multiple crimes in crime of evading tax. Because of numerous ways of evading tax and the regulation of crime of evading tax itself. I will analyze it according to some common situations.1.the relation of the crime of evading tax with the crime of value-added invoice2. the relation of the crime of evading tax with bribing3 the dealing with invading tax first and refusing to pay tax.4.the identification of invading tax first and escaping from taxAs to the identification of invading tax first and escaping from tax, in judicial practice, some tax-payers commited the crimes of invading tax, and were punished by taxation and judicial departments. In order to escape from the duty to pay tax, they usually transfer or hide their possession so that taxation and judicial departments have no way to pursue the tax thay invaded.To deal with this situation, I think it is enough to form crimes of invading tax and escaping owed tax and should be punished as multipe crimes, for the crime of invading tax and that of escaping tax are commited in different intentions of crimes and they have no connection in law and they form respectively crime of invading tax and that of escaping owed tax.Part four the identification of crime of unit invading taxThis part will illustrate the differences between crime of unit invading tax and that of natural person's commiting crimes. The differences between crime of unit invading tax and that of natural person's commiting crimes lie in that the former must be pursuing illegitimate profits for the unit and must be consented,authorized or ordered by the unit. If the unit divided what they get by invading tax personally, then it could not treated as crime of unit invading tax.It is intensely argued on the question that whether private cooperation should be an object of unit crime. I believe that how to judge whether a private cooperation has a status of artificial person is the point. Among th four types of private cooperations, only private limited cooperations and private limited-liability companies have the status. For the private exclusive investment and private joint cooperations, who do not have the qualification of being an artificial person, we should not identify it as a unit crime. We should punish it according to the regulations of crimes for natural persons.