Empirical Study Of Status Of Chinese Tax Subrogation System

In year 2001, "People’s Republic of China Administration of Tax Collection"(hereinafter referred to as "the Tax Administration Act") introduced the subrogation of the civil law, making tax claims can break through the debt relatives to expand to a third party outside levied relations, and restrained the behavior between taxpayers and third parties. In other words, the establishment of tax subrogation system-not only further clarifies the public law of property tax debt in Chinese tax laws, but also embodies the trend of the privatization of the public law-has great theoretical value. Simultaneously, the establishment of the system, with the original tax payment guarantee, preservation tax enforcement measures, such as tax collection of the "Tax Administration Law", makes our tax credit system further improved and complete. Therefore, tax subrogation system should play an essential role in the practice of Chinese taxation collection.However, due to the preliminary observation, the reality seems different situation. It is rare to learn the cases on the exercise of the tax authorities take use of tax subrogation. People would be curious that, how is the status of implementation of the tax subrogation? The essay attempts to collect publically reported cases of tax subrogation and learns the real situation of it, analyzed the opinions and attitudes of tax authorities who as the user of the system, as well as the confusion and problems they encountered when they carry on the system, hoping to do the right remedy, improve the system and thus it could play its due legal value, in order to be able to practice on the tax benefit.The paper consists of three chapters——introduction, body(five chapters) and conclusion:Chapter one, the establishment of status of Chinese tax subrogation system. In this chapter, the author introduces the background of tax subrogation go into "Tax Administration Law" which was revised on Year 2001. And through the "Tax Administration Law" Article 50, "People’s Republic of China Contract Law"(hereinafter referred to as the "Contract Law") and Section 73, "the Supreme Court interpretation of applicable ‘People’s Republic of China Contract Law’ Issues(a)"(hereinafter referred to as the "Contract Law interpretation(a)") to Article 11-22 integration to subrogation civil law modeled outline elements tax subrogation. The author also compared and ananlyzed tax subrogation and "Tax Administration Law," the original public law tax protective measures, found that the two laws played roles in the preservation of tax claims interrelated, mutual coordination and complementary effect. Through this chapter we can see that legislators in the establishment of good expectations of the system, then in practice, how is the actual operation of the system?Chapter two, the implementation of status of Chinese tax subrogation system, First of all, the author collected tax subrogation cases from the practice, after summarized, found two phenomena: First, tax subrogation run over 14 years, the total amount of subrogation cases of tax practice is still rare, showing that frequency of use of the system of tax authorities is low. Second, in terms of the tax subrogation cases collected, the ratio of the illegal use of tax subrogation of tax authorities is relatively high, indicating that the tax authorities encountered problems in use of the system. Third, the author analyzed the collected taxes subrogation cases, extract common feature of these cases, trying in this way, to interpret the understanding of tax authorities on the system of the tax subrogation, restore the operation of the tax authorities in practice. Those are for the next chapter, the author will stand in the perspective of the tax authorities to pave the way to analyze problems. Finally, we will conclude the latest mediation of tax subrogation, this new form of thinking, is believed to have positive significance to thoroughly dissolve the dispute and conflict of tax collection although theorists still debate tax subrogation cases.Chapter three, analyzes the cause of "freeze victims" of tax subrogation. In this chapter, the author will take the role as the tax authority tax subrogation, trying to find the answer to both questions, why the tax authorities do not use tax subrogation? What problem did the tax authorities encounter when they use subrogation taxation? We wish to find reasons of tax subrogation stagnant. With the information collected from the first chapter as well as the analysis of tax subrogation cases, we thought that on the one hand because of the ambiguity of the provisions of the legislation, making the tax authority itself lack of accurate understanding and recognition, resulting in the tax authorities "will not use" of the system; on the other hand, there exist big difference in exercise measures, exercise procedures and the status of tax authorities between the taxation guarantee measures which as the private law and the executive power which was used frequently as the public law used in daily taxation collection for the tax authorities. The tax authorities do not adapt to their role in the adjustment of the system, resulting in a subjective tax authorities "do not want to use" the system. Further in the process of lawsuit, the tax authorities burden too much pressure on probatio, causing the tax authorities "can not use" the system.For these reasons, the author believe that for the situations of the tax authorities "do not use", "can not use" the system, we can be targeted to make the relevant provisions of the tax subrogation be perfect; for the situation of tax authorities "do not want to use" the system, the tax authorities will have to adjust their inherent administrative mind, learn to adapt to the legal relationship under the new situation. And they should recognize tax subrogation because it involves a third party or even the stability of the entire social and economic order, in order to prevent the abuse of administrative power to protect the legitimate rights and interests of taxpayers and their debtors, strict rules on litigation and jurisdiction are necessary.Chapter four, the foreign tax subrogation research and reference. Given the different conditions and different legal environment, there exist few countries which established the tax subrogation system in the world. The author selected the first country which uses tax subrogation systems- French, as well as the country we referenced most in our transplant subrogation system- Japan. Compared with these two countries, in the form of a list of forms in the exercise of intuitive way, object scope and constituent elements of the difference between foreign tax subrogation, the author analyze the actual situation of our country to learn to improve other than comprehensive transplant to our country. We will improve when it is suitable to our country, depending on the circumstances in order to be designed to meet the Chinese characteristic tax subrogation.Chapter five, discussion on improving tax subrogation system. According to the third chapter the author analyzes the problem of the tax authorities in the implementation of the tax subrogation system, combined with research and analysis for the fourth chapter foreign tax subrogation proposed a targeted improvement suggestions, and these suggestions classified into two dimensions of entity and procedure, the author proposed explicit execution subrogation elements in tax legislation, increased the tax authorities operability. It is worth noting that, in making perfect proposal, the author do not only just stand on the point of practical demands of the tax authorities, in terms of view of the special status and practice of the tax authorities in the illegal condition in practice, the author also took into account the protection of rights of legitimate taxpayers and secondary obligor, but also adhere to the way of tax litigation to solve the tax subrogation, the major principles can not be changed, and in this way, the tax authorities should change their attitude, escape the inherent administrative thinking. What the tax authorities do, is to minimize litigation costs, improve economic efficiency, and it all depends on the professional judgment of the tax and business staff. The author also proposed to improve the supervision system of subrogation against the tax authorities and the secondary obligor’s right of defense in the litigation to prevent abuse of the tax authorities of its executive powers.Finally, the author concludes, although tax subrogation does not belong as a new thing in our country, but with the lack of relevant legislation and supporting laws and regulations, the result is that there exist different understandings in practice, yet it does not reflect its proper legal effect. However, the believe that as China’s market economy continues to be strengthened, the perspective of tax claims and liabilities as of the public views will be fully enjoys popular support, professionalism of tax agency staff will be continuously improved, tax authorities will increasingly use the system and it will be increasingly mature; with the deepening of research, tax subrogation provisions continue to be improved and developed, as well as public awareness of the law, thus the tax subrogation will continue to develop and mature, and its legal effects will continue to improve, in order to play its due role in achieving its legal value.