The Empirical Study On Delegated Legislation Of Tax In Our Country

Delegated legislation of tax plays a positive role in China’s tax law system, but triggers many problems as well. In practice of tax legislation, there are lots of substandard actions such as ambiguous or blank authorization, re-delegating and enlarging the authorized limits due to the violation of authorized offices. Also, the defects in both supervisory mechanism and public participation mechanism, and bloated tax legislation power of administrative organs attribute to an abnormal situation that administrative legislation manages our taxation. Those issues urge us to query the legitimacy and validity of delegated legislation of tax and to consider the distribution of power between legislative and administrative body, and how to use the theory of the separation of powers and the principle of human right to counterbalance the bloated power of administrative organs.Speaking of legality, the legislative authority of taxation exclusively belongs to National People’s Congress (NPC), which also have the poewer to re-delegate. While referencing our Constitutional Law and the practice of other countries, we can find re-delegating should be limited and strict. Therefore, essential matters in taxation such as items and rate should be reserved by law, but rules of enforcement could be formulated by administrative organs. More, re-delegating should follow principles and be explicit and concrete, one-to-one. From historical background, the task for legislation of tax is no longer as much heavier and more urgent as before. The reasonability of its re-delegation to the State Council has gradually disappeared.The authority of tax legislation and execution convergent in administrative organs causes lots of contradictions and problems, sometimes even infringes taxpayers’right. In response to these problems, the highest political leadership cleared the implementation of the legal principle of taxation in the decision of the third plenary session of the eighteenth. And with the query of its legitimacy, it is deemed that the authority of tax legislation should be returned to NPC. But it needs time. For a period, delegated legislation of tax will still exist. To make up for its flaws, public participation mechanism and evaluation mechanism should be improved and established respectively to make delegated legislation of tax turn to legislation track.