A Study On Tax Legislative Authority In This Country

Tax legislative authority, an important component element of national legislative authority, refers to the power, the mechanism of political power own, to formulate, issue, implement, amend, supplement, and abolish the rules and regulations of taxation according to some procedures. All powers in People's Republic of China belong to people and the mechanism for people to exercise national power is national people's congress and local people's congress of all levels. There are some problems in tax legislative authority in our country, e.g., questioned validity and constitution-allowance, over-authorized legislation and serious unbalance of dividing limits to right etc., which influence the full play of functions of taxation.This thesis takes double-comparison method to prove the author's view. The author first compares the current situation of tax legislative authority in some foreign countries; then compares tax legislative authority in our country and that of foreign countries. By comparing tax legislative authority in some representative foreign countries where continent law series and common law series are adopted, the author hopes to take others'experience as a source of reference to resolve the problems existent in tax legislative authority in our country.This thesis is divided into 5 parts. In Part-1, concept, characteristic, legislative institution and legislative procedures of legislative authority and tax legislative authority are simply elaborated separately. Generalized legislative authority contains not only legislation but also budget-resolving, supervision, investigation, war-breaking and peace-making, interpellation, impeachment, agreement, etc., while legislative authority in a narrow sense refers to the power the legislative institution own to approve, formulate, interpret, supplement, amend or abolish the law. And legislative authority in a narrow sense is studied in this thesis.In Part-2, the author introduces the history of tax legislative authority in our country. Through a vertical view of tax legislative authority in our country, it experiences a circle of centralization--devolution--recentralization--second devolution of powers, which is decided by the political and the economic system in our country. The author attempts to divide the heuristic procedures of tax legislative authority in our country into 3 stages, namely incipient establishment, reestablishment and completeness, and describes the developing situation and the characteristics of each stage respectively, then finds the elements which influence tax legislative authority and the problems existent in tax legislative authority in our country by contrasting each of these stages.In Part-3, the current situation of tax legislative authority in several countries adopting two main law series is analyzed contrastively. The author selects tax legislative authority in France and Japan as the representative of continent law series, while that in English and America as the representative of common law series. By comparing tax legislative authority in these 4 countries of the two main law series, the author finds that the system of limits to rights is interrelated with national political and economic system in each country, but there is difference in divisions, e.g., centralization of state power and divisionalization of powers, and they are neither absolute nor simplex, besides, there is a trend that divisionalization of powers will be adopted in each country. However, there is something in common: in each country, tax legislative authority is defined in a way of constitution or basic law and the division of tax legislative authority is made clear, besides, in the procedures of taxation legislation, they all reflect tax principle of legality with no exception, regardless of central legislation or local legislation, autonomous legislation or authorized legislation. In addition, democracy and supervision are embodied completely clear in the procedures of taxation legislation. Democracy means degree of rule-by-law and more developed rule-by-law in a country implies higher degree of democratic legislation further leads to more enthusiastic of citizen to participating in legislation. Under a law formulated through democratic participation, the national will have high acknowledgement and high comprehension, which results in smoother execution of law, therefore, the purpose and the result of legislation will be achieved quickly. On the contrary, a legislation of close connection with the national's interrelated interest but without his participation, will cause kinds of relatively furious responses, besides, for there is no interrelated explanation on legislation about its objective, aim and significance etc., and no choice for the national to explain and argue about this legislation, it will be sure to be misunderstood, further influenced in its execution, therefore, legislation may lose its intrinsic meaning.In Part-4, through an analysis of the current situation of tax legislative authority in our country, the author summarizes the existent problems. The system of taxation law is established gradually short after the foundation of PRC, but with extreme unbalance, therefore, its ratio, up to now, is miniature and the future trouble of over-authorized legislation is embodied clearly. The relatively low level of taxation law makes it lack in stateliness, which results in difficulties in executing taxation work by law and by order. Tax legislative authority is over-concentrated to the central in our country so that vacant position exists in limits to rights of local legislative authority, which brings much difficulty to the local finances, further influences the development of local economy. More and more scholars pay close attention to the constitution-allowed issue of tax legislative authority in our country, because there is no definite tax principle of legality in constitution in our country, if any implied items, the connotation is incomplete. In the author's opinion, there are several main problems in tax legislative authority in our country as follows: lack in lawful safeguard, indistinct division and unbalance able use of limits to rights of tax legislative authority; suspected shift of legislative authority without restriction; and lack in democracy and scientificalness in the procedures of taxation legislation.In Part-5, directed towards the current situation of tax legislative authority in our country, the author conceives from 3 main aspects: firstly, completing lawful safeguard of tax legislative authority: enriching constitution in a proper way at a proper time by making tax principle of legality clear; establishing basic law of taxation, as mother law of taxation to resolve the problem of vacant position in basic system of taxation in our country; standardizing authorization of taxation legislation, namely changing the situation that administrative mechanism is legislative institution; improving procedures of legislation: promoting a democratic and scientific method of legislation so as to raise the feasibility of taxation legislation; completing the law of taxation procedures and strengthening the rigidity of taxation execution. Secondly, deploying tax legislative authority reasonably: no matter transverse division or vertical division is ought to be executed in a scientific method, insisting on, according to the current situation in our country, the principle of giving priority to central centralization of powers, complemented with local centralization of powers, and divisional zing powers between the central and the local, between sections in the central legitimately, reasonably and properly. Thirdly, completing the system of lawful supervision in two aspects: taxation legislation and authority legislation; it is advised that taxation legislation adopt a double-supervised method: beforehand supervision and afterward supervision; the former, adoption of publicizing the draft of tax law and system of public hearing, is used to make up for the disadvantages of the latter, adoption of setting up an institution of legislative supervision: supervision committee; with regard to authority legislation, it is advisable to take the double-insurance manner: beforehand examination and endorsement and afterward records; in additions, promoting the democracy and scientificalness of procedures of legislation is another effective method of supervising the legislation: establishing supervision of all levels, making legislative mechanism, administrative mechanism, judicial authority and the ordinary people become the supervisors, is the effective, feasible safeguard of taxation legislation.