A Thought On Improving The System Of Tax Administrative Review In This Country

In modern society, with the extension of administrative power and the rising of positive administration, there are more and more administrative disputes, especially in front of the powerful state taxation power, relative people of tax administration, such as taxpayer etc., are in weak position in administrative management activity of tax, and their lawful rights are often violated in tax management activity. Therefore, a kind of institutional arrangement should be provided for relative people of tax administration legally so as to balance tax administrative power and protect the lawful rights of the relative people of tax administration, such as taxpayer etc. As a kind of administrative relief system, tax administrative review provides a mechanism to contend against the administrative power of tax authorities for the relative people of tax administration, such as taxpayer etc. It has great significance for the following aspects: guaranteeing the lawful rights of the relative people of tax administration, such as taxpayer etc., correcting illegal or unmerited administrative behaviors of tax and supervising tax authorities'administration according to law. Since the founding of New China, especially after the reform and opening-up, the system of tax administrative review in this country have got a substantial development and made tremendous achievements. However, from the situation of taxation practice, tax administrative review in this country is still not fully up to expectations on the aspects of institutional design, organization, personnel quality, practical operation etc., and there are many defects, such as organization is not independent, low quality personnel, narrow scope of accepting cases, unreasonable reconsideration in advance, non-transparent procedure etc., which greatly restrict tax administrative review's functions of right guarantee and solving tax administrative disputes, resulting in that its effective functions can't be brought into play in practice, and influence the process of tax law construction in this country. Therefore, the system of tax administrative review in this country should be improved and developed as soon as possible.Starting from theoretical and practical analysis, the current situation and existing problems of the system of tax administrative review in this country are deeply analyzed in this thesis, at the same time, through combining The Regulations for the Implementation for Law of Administrative Review of P. R. China and drawing lessons from the experiences of chief countries and regions in the world for the system of tax administrative review, based on national conditions, the proposition to improve and complete the system of tax administrative review in this country is proposed. This thesis is divided into 3 parts.In Part-1, the current situation and existing problems of the system of tax administrative review in this country are deeply analyzed, and the cause of problems is briefly illustrated. Although the system of tax administrative review in this country has been established late, it has got great achievement after the development for several decades, which is shown on the following aspects: the scope of tax administrative review is expanded, partial abstract administrative acts of tax are brought into the scope of tax administrative review, the trial style of tax administrative review is further made clear, the level of the organ of tax administrative review is increased, the evidence system and legal responsibility of tax administrative review are completed etc. However, from the practices of tax administrative review, the system of tax administrative review in this country still exists the following current situations, such as low amount of case accepting, low maintenance rate, poor quality of reconsideration, the failure of relief function, moreover, the existing problems of the system of tax administrative review on the macro-scale level and micro-scale level also can't be ignored. From the macro point of view, it is mainly shown as the two aspects: the deficiency of law idea of tax as well as obstructed channel of tax administrative review and unsatisfactory external environment; from the micro point of view, it is mainly shown as the six aspects: too narrow scope of the examination for review of abstract administrative act, unreasonable advanced regulations for tax liability, the deficiency of review department in independence and fairness, weak intensity of examination for review, the deficiency of partial systems in operability and unspecialized review workers. Trace it to its cause, on one hand, it is because that the practical activities of taxation lag behind the relevant legal requirements; on the other hand, the legislative activities lag behind the current practice, the legal norms of administrative review including partial Administrative Review Law and Rules for the Tax Administrative Review (Provisional) can't adapt to the practical requirements for the development of tax administrative review.In Part-2, the general situations of tax administrative review in major countries and regions in the world as well as the enlightenment for the system of tax administrative review in this country are introduced. The systems which are similar to the tax administrative review of this country of major countries and regions in the world, such as Britain, Japan, America, Germany, France, the region of Taiwan etc., are selected and introduced one by one in this thesis, and the characteristics of the system of tax administrative review in each country are analyzed emphatically. At the same time, from the aspects of the scope of tax administrative review, regulations concerning tax payment before tax administrative review, the examination mode of tax administrative review, the setup of tax administrative review institution and personnel composition in each country, the places which can be studied and used as a source of reference by us are analyzed, and four important enlightenments are obtained from it: firstly, the scope of accepting cases for tax administrative review should be expanded, and more comprehensive relief should be given to the relative people of tax administration; secondly, the advanced regulations for tax liability should be modified, and taxpayers should be given the rights to choose whether pay tax or not; thirdly, written or unwritten examination mode should be adopted flexibly and the examination mode of review should not be divided into main part and secondary part so as to maximize the justice and efficiency as far as possible; fourthly, the independence of tax administrative review institution should be strengthened and the quality of review workers should be increased so as to effectively solve the existing problems of the system of tax administrative review in this country, such as the deficiency of review department in independence,the low quality of review workers etc.In Part-3, starting from the practical situation in this country, through combining the legislative experiences of foreign countries and focusing on the existing problems of the system of tax administrative review at present, the proposition to improve and complete the system of tax administrative review in this country is proposed. It is mainly shown as follows: in ideology, the law idea of tax should be reconstructed, taxpayer's selfish departmentalism of right and the idea of tax judicial principle should be established, the conception of the Theory of the State as Standard should be changed, the enactment and framework of tax law should be transferred to the core which is taken Human as goal, and the judicial characteristics, such as independence, uniformity, specialty, publicity etc., should be reflected in the selection and regularity for the system of tax administrative review; in the external environment, the legal consciousness and right consciousness of taxpayer should be actively cultivated, the channel of tax administrative review should be opened, tax revenue legislation should be completed, law enforcement of taxation should be standardized, the quality of law enforcement of taxation should be improved, and the randomness of law enforcement of taxation should be effectively eliminated so as to achieve the aim of reducing the incidence rate of reconsideration of the case; in legislation, the scope of the examination for abstract tax administrative act should be enlarged, the advanced regulations for tax liability of tax administrative review should be cancelled; in the establishment of institution, the independence of tax administrative review institution should be strengthened, based on the current committee of tax administrative review, outside the series of collection, management, examination etc., it is divided into the three levels of central authority, province and city, the independent system of tax administrative review institution directly under the leading of director of State Tax Administration should be established. At the same time, in the personnel component, legal personnel and backbone of business who are rich in experiences in tax system should be added into the committee of review, and it should be guaranteed that among the members of the committee of review, the number of social righteous gentlemen, experts and scholars is not less than one half so as to guarantee the accuracy and justice for the judgment of tax administrative review; in the design of procedure, its quasi-judicial nature should be strengthened, and according to the requirement of Due Process, further complete the procedure system of tax administrative review. Including to complete the evidence system of tax administrative review, system of verbalism and arguing, system of hearings, challenge system and system of no exparte contact, mediation system, system of summary procedure and system of no adverse change in tax administrative review, etc., and propose the measure and method to complete the liability system of tax administrative review; in personnel quality, it is proposed to establish the system for training the personnel of tax administrative review, the system of job requirements and the system of position guarantee, further improve the professional qualities and ability of tax administrative review personnel so as to better satisfy the practical requirements of the work of tax administrative review.