On The Legal Principle Of Revenue

At present, legal principle of revenue has been an acknowledged principle of tax laws in academic field. Its basic spirit has been reflected to judicial legislations of countries. However, concepts of legalism of tax revenue are greatly defaulted in the present system of tax laws of our country under the historical background of thousands of years of federal dictatorship, which substantially hinders the development and improvement of the revenue system of our country, such as serious problems of the low validity grade of tax laws, substantial existence of phenomenon of the legislative authorization and others. Thus, it is emergent to decide how to further improve domestic legal system of revenue and advance progresses of managing tax by law to construct harmonious society. It is necessary to further study legal principle of revenue in order to improve tax system and the whole legal system and to promote healthy operation and coordinative development of economy and society.This thesis is divided into four parts excluding forward and conclusion:Part One the Basic Theory of Legal Principle in RevenueFirst, the emergence and development of legal principle of revenue will be introduced. The theory of legal principle of revenue emerged in Magna Carta in 1215, with the purpose of restraining the king's willful collecting taxes. Bill of Rights in 1689 made legal principle of revenue with latter-day meaning established in Britain. Then the modern development of legal principle of revenue will be introduced, of which the prominent manifestation is that the principle is included in the constitutions of many countries. And then the theoretical bases of the formation of legal principle of revenue will be discussed. They are liberalism, checked balance and democratism. And last, the conception of legal principle of revenue will be studied semantically to be defined. It is pointed out that theoretical bases of this paper are legislative authorization of constituent elements of revenue, definitude of constituent elements of revenue, validity of procedures, and legislative authorization of transfer of tax power, the four points contained in legal principle of revenue.Part Two Value Analysis of Legal Principle of RevenueFirst, the theoretical value of legal principle of revenue from the three perspectives of politics, law and economics will be investigated to reveal its value of democracy, rule by law and efficiency. Then, this paper will discuss values of practice of legal principle of revenue, which lays the foundation of validity of state's taxation power, checks the misuse of government's taxation power, strengthens stability and predictability of tax laws, accomplishes taxation equality and guarantees taxpayers'rights.Part Three Deletion of the Legal Principle of Revenue of Our Country and Its Consequential DisadvantagesIn this part, the problem of deletion of legal principle of revenue in our country will be analyzed. Deletions of legal principle of revenue in the Constitution, the legislation law and definition of legislation power of taxation are respectively analyzed, and the consequential disadvantages are expounded. Item 56 in the Constitution of our country prescribes: Citizens of People's Republic of China have the duty to pay taxes according to law. This prescription does not fully incarnate legal principle of revenue. It merely emphasizes citizens'duty to pay taxes and does not incorporate citizens'rights in taxation into Constitutional protection, which does not incarnate the tenet of legal principle of revenue----guaranteeing citizens'property rights. The Legislation Law does not provide the scope and supervision of legislative authorization of taxation, and lacks supervision mechanism in the execution of legislative authorization of taxation. All these three aspects are not in accordance with the requirements of legal principle of revenue, and are contrary to intentions of legal principle of revenue. Phenomenon of deletion of legal principle of revenue also exists in definition of legislative power of taxation, including indeterminate division of legislative competence between National People's Congress and its Standing Committee and the state council, too wide scope of legislative power of taxation executed by the state council, excessive concentration of legislative power of taxation in the central government, and weakness of legislative power of taxation executed by local governments. Because of deletion of legal principle of revenue in legislation in our country, powers are decentralized, the grade of legislation of taxation tends to be on the low side, administrative legislation is abnormally prosperous. The number of miscellaneous provisions of tax laws is higher than normal, and this also leads to the negligence of the present standardizing legislation of tax laws and goes against the tide of implementing tax laws. The belongning of the main body of tax laws'explaination appears misty and the effect of the explaination behaviours at will.Part Four Legislative Orientation of Legal Principle of Revenue of Our Country and Improvement of Legislation of TaxationFirst, legislative orientation of the principle in our country is brought forward according to the reality of our country in relation to deletion of legal principle of revenue, that is legal principle of revenue should have hierarchy of constitutional principle and legal norms against legal principle of revenue should be invalid. As the highest principle of modern tax laws, legal principle of revenue should run through the whole process of legislation of taxation, administration and judicatory. Legal principle of revenue first appeared as a legislative principle. It prescribed that criteria for tax law should be legislated by legislative organs alone, and other organs should exceed their authority to make tax law. At the same time, it requires legislative organs not to abuse their power. Legal principle of revenue is the highest principle of tax laws both formally and essentially. It covers the principle of equality. I suggest that legal principle of revenue should be the first principle in our country. And I also bring up my own idea about establishment of legal principle of revenue and improvement of legislation of taxation of our country: First, the Constitution should be improved by establishing legal principle of revenue in it. To append a prescription about legal principle of revenue to Article 56 of the Constitution could be considered: Any person is forbidden to pay any taxes without following definitude legal prescription or authorization. Chapters of finance should be specially placed in the Constitution for fiscal constitution. Legal principle of revenue should be expounded in them, and it is emphasized that imposition of a new tax, changing the tax rate, tax remitting and abolishment of tax category must be stipulated clearly by laws. In the legislation law, it should be prescribed even more clearly that items of basic taxation should all be stipulated clearly by laws. Only in extremely special condition could the state council be authorized to legislate, but legislation of blank authorization is not allowed. Secondly, present more mature substantive administrative regulations of taxation should be legislated through legislation procedures. Substantive administrative regulations of taxation that made by the state council should be legislated according to legislation procedures to raise the levels of tax laws. The state council, treasury and various local governments can only prescribe implementing regulations in accordance with tax laws. In consideration of the taxation interpretation function of implementing regulations and rules, regulations and rules are limited in accordance with the Constitution and the Legislation Law in order to prevent it from violating or even distorting willfully the original meanings of tax laws and thus tax laws will not totally change because of secondary legislates. Thirdly, legislation technology should be advanced and meticulosity of clauses should be strived for. Legislation transparence should be elevated in order to achieve the point above. Hearing system should be applied and demonstrations should be organized. Fourthly, legislative power of taxation and legislative power of interpretation of National Administration for Taxation should be abolished and a part of legislative power of taxation and the whole legislative power of interpretation of treasury should be reserved. At the current stage, a part of legislative power of taxation should be authorized to treasury within certain premises. On the basis of definitude scope of interpretation and competence, interpretation power of tax laws should be bestowed on treasury. National Administration for Taxation can only set up a specific provision for correlative execution procedure in terms of law and constrained objects of the provision should be tax collectors, not taxpayers. Fifthly, legal defining of legislative competence should be regulated. Legislative competence of taxation of our country should be improved and perfected in both lateral and vertical aspects: in the vertical aspect of subordination of validity, legislative competence of taxation should be divided properly between the central government and local units. In lateral aspect of cooperation relations, legislative competence of taxation should be divided properly between organs of power and administrative organs. Sixthly, the present system of authorized legislation should be transformed appropriately. The three principles should be followed to remold the system of authorized legislation----cautious authorization, certificate authorization and no delegation. At the same time, the procedure of authorized legislation must be followed.I expect to put forward applicable suggestions on final establishment and improvement of legal principle of revenue of our country though analyses and demonstrations in this paper to contribute to the further development of laws of taxation in China.