Tax Subrogation Rights Research

Subrogation right is a traditional system in the civil law; it has been adopted by civil legislations of a good few countries. There are also many concerned fundamental research and writings in domestic academic circles. Taxation law belongs to public law; it seems to have nothing to do with the system of creditor's subrogation right. However, the fact that the harm to the national tax revenue caused by neglecting to exercise the due right massively exists in the practice of collection and management of the tax revenue: Our country studied and modeled the tax revenue legislations and experience in some overseas nations, which had more perfect tax revenue legislation. Thereof, we established the system of the taxation subrogation right. The system of taxation subrogation right was transplanted from the system of creditor's subrogation right in the civil Law. It is the civil law's creative utilization in domain of the public law. It has fully manifested the legal science development tendency of the merging of public law and private law. In 1999, Contract Law of the People's Republic of China stipulates the system of subrogation right. In 2001, Tax Levy and Management Law of the People's Republic of China stipulates the system of taxation subrogation right. Although it has the legal preliminary stipulation, some related legal stipulations about tax subrogation in our country are quite simple and shallow when it faces with questions which exist in concerned fundamental research and practicing. They cannot adjust the legal relationship among the tax authorities, the taxpayer and the third party well. So we must improve it. Therefore, the domestic legal science and practicing circles are also needs to conduct in the massive fundamental research and bold practical innovation.Taxation subrogation right means that the taxpayer who defaults on tax is neglecting to exercise the due right, which causes damage to national tax revenue; the authorities have the right to petition the court for exercising the claim instead of the defaulter of tax in the name of the authorities. But this claim exclusive to taxpayer own is an exception. From the nature, taxation subrogation right contains the nature of management right and request right. The main components of taxation subrogation right contains these: the tax authorities enjoy legitimate and definite creditor's right of tax revenue to the taxpayer; the fact that the taxpayer defaults on tax really exists; the object scope of taxation subrogation right must be suitable; the taxpayer is negligent to exercise its due right; national tax revenue receives the harm because the taxpayer is negligent to exercise the right.According to "the creditor's rights and debt relations said" of tax, relations among tax authorities, creditor, and the third party play on an equal footing. Tax authorities must change their roles as the power of the executive principle and their consistent management thinking to the taxpayers, because in the proceedings of taxation subrogation right, tax authorities, taxpayer, and the third party are equal in creditor's right and debt relations. Tax authorities can exercise the taxation subrogation right only through court proceedings means in order to ensure the legitimate rights and interests of parties, and to avoid unnecessary disputes. After tax authorities recover, the debtor of the taxpayer can directly discharge the debt owed of taxpayers to the tax authorities. The debt discharged, the taxation subrogation will be realized, and the national tax revenue will be also wholly or partially achieved.