A Research On The Some Issues Concerning Crime Of Evasion Of Taxes Paid

From of old, the game between the tax collection body and the taxpaying body has never stopped, what's more, with the economic and technological development has become even more violent. It has been an unfailing theme all the time that how to reasonably and effectively regulate the most common and prevailing behaviors of not paying the tax payable or paying less than the tax payable—behaviors of evasion of taxes paid and crime of evasion of taxes paid. Since the Crime of Tax Evasion was ruled firstly in Article 121 of the Criminal Law of the People's Republic of China in 1979, it has been a rather controversial topic. And especially on Feb. 28, 2009, Amendment VII to the Criminal Law was passed through the review of the Seventh Session of 11th National People's Congress, which again conducted a great amendment to the crime of tax evasion of Article 201 in the Criminal Law as well as arose a new round of argument and doubt from both the theoretical circle and the practical departments. In the thesis, the research is carried out around the related content amended this time, based on which, the conclusions for some related controversial issues are gained.In this thesis, the first part is the investigation carried out on the history of crime of evasion of taxes paid and is divided into 2 sections.Section-1 is, through combining the different historical stages since the foundation of new China, a brief introduction to the historical development status of tax evasion in the criminal legislation of China, and it is divided into 4 stages: Stage-1 is from 1949 to 1979, which is restricted to the stage for criminal responsibility article of the administrative laws and regulations; Stage-2 is from 1979 to 1992, which is the initial stage of criminal legislation; Stage-3 is from 1992 to 1997, which is the supplement stage for criminal legislation; Stage-4 is from 1997 to 2008, which is the further improvement stage for criminal legislation. Summarizing this development history, the author thinks that there are three characteristics mainly embodied: Firstly, the criminal legislative development process of crime of evasion of taxes paid has been on the base of economic development and tax reform all the time and has ?presented to be stricter and stricter than before. Secondly, the criminal legislation of crime of evasion of taxes paid is not stable enough, varying within relatively wide limits and being amended frequently. Thirdly, it is the long-term asynchronism and disharmony between the criminal legislation of crime of evasion of taxes paid and the rules for tax evasion behaviors in the tax collection and management regulation. The author believes that, mastering the above characteristics is not only helpful for a correct understanding and application of the newly amended crime of evasion of taxes paid but also puts forwards the problems and clarifies the direction for the amendment of the tax collection and management laws and the follow-up related judicial interpretations.In Section-2, the origin and key content of the major amendment implemented to Article 201 of the Criminal Law by Amendment VII to the Criminal Law of the People's Republic of China are introduced. Among which, the most notable one is that the determination of the legislator to change the accusation of crime of tax evasion which has been used for nearly 30 years shows the fundamental change of the legislator in understanding the concept of the citizen's private properties, which thus achieves the uniformity of the concepts in the Criminal Law and the Constitutional Law. Meanwhile, the newly added special clause that those have the condition not to be prosecuted for their first offense is a reflection of implementing the criminal policy combining punishment and leniency together, showing the legislator's more consideration on the feasor's harmful consequences and his attitude of showing repentance when dealing with economic crimes, which will undoubtedly play an active improving role in retrieving the tax loss of China, effectively preventing and controlling crimes and promoting the formation of paying tax lawfully. However, what is needed to note here is that, the not to be prosecuted for their first offense in the special clause shall be distinguished with the be exempted from criminal penalty in the judicial practice.In this thesis, the second part is the research done on the several issues concerning the subject confirmation of crime of evasion of taxes paid. Integrating the taxation practice and the judicial theory, the author respectively makes analysis and statement on the legal status and the related responsibilities of the withholding agent, delegated collector, operator without license, illegal operator and tax agent, and also puts forward the corresponding views.In this thesis, the third part is launched around several controversial issues in the objective identification of the crime of evasion of taxes paid. It is divided into 3 sections.Section-1 is the identification of the amount of tax payable. The application of duel-conviction standard makes the identification of the tax payable play a dominant role in convicting the crime of evasion of taxes paid, further more, not only the conviction or not, but also the level of conviction directly. Therefore, a correct definition of the amount of tax payable is of vital importance to the correct conviction of crime of evasion of taxed paid and its punishment. In the author's opinion, the determination of the amount of tax payable is absolutely not a simple question which can be correctly figured out just according to the related regulation in tax law, but a complex problem required to be taken seriously by both the theorists and practitioners. While, the determination of the tax payable relies on two factors: Types of the payable tax and the period of the amount of tax payable. After the amendment to Article 201 of Criminal Law by Amendment VII to the Criminal Law, related judicial interpretation and regulation have not been unveiled till now and the determination of the amount of tax payable remains to be made clear. The author hopes that legislators will give a full consideration to the practical situation of the taxation work and the judicial practice, and then, conduct a more scientific and reasonable investigation to the implementing status of taxpayers'integral duty to pay tax.The Third Clause of Article 201 of Criminal Law amended The committing as specified in the former two clauses many times and remains to be dealt with should be calculated according to the cumulative amount has been analyzed in Section-2. And the idea that remains to be dealt with means any criminal penalty rather than the administrative punishment has been done is put forward, meanwhile, in combination with the objective circumstances in working practices, how to perform the accumulative accounting has been discussed, and the idea that due to compound types of the criteria to convict, the crime of evasion of taxes paid cannot accomplish the accumulation at all has been obtained, and author recommend that the content of this clause shall be abolished by the legislator.Section-3 is engaged in mainly analyzing amendment of conduct pattern for crime of evasion of taxes paid in Amendment VII to the Criminal Law from beginning with analyzing the emerging and development history of tax declaration system in China and its embodiments in the field of criminal law. The author considers that, the legislator's abolishing the means of crime related with certificates and account books ?which have been applied for many years and only to set up the two forms referring to the false tax declaration and no declaration have highlighted immensely the importance of tax declaration system in the field of taxation at present in China, which further makes clear the causal connections between forming behavior of crime of evasion of taxes paid and itself, as is a fundamental and important change in criminal laws for the provision of this crime at objective aspect. And it is commonly held by theory circle for many years that crime of tax evasion can only be constituted both by intention and direct intent rather than negligence and indirect intent.The amend of this time, the legislator has the assertion of subjective aspect on direct intent that had been held fast over the years, made the conducts of not paying tax and paying less than the lawful depending on means of not declaring a crime, which is both an essential requirement to present development of tax declaration system in China and a subversion in theory from subjective aspect of original crime of tax evasion.The final part of the thesis is conclusion. The amendment to Article 201 by Amendment VII to the Criminal Law has triggered once again arose the asynchronism and disharmony between the criminal legislation and related tax collection and management laws and regulations, how to amend timely and effectively to reach the integration of linking up and coordination has become a common concern by legislator, theorist and practitioners.