Research On Tax Guarantee Legal System In China

Tax guarantee system as the practice of tax law by referring to civil guarantee system, and a typical representative that the public law refers to private law, plays important roles in safeguarding the legitimate rights and interests of national tax creditors, taxpayers and other parties, and has been adopted by various countries in the modern time, as a special guarantee system, it has the properties of public and private law at the same time.Since China proposed the concept of tax payment guarantee for the first time in 1986, and issued Trial Measures for the Surety for Tax Payment in 2005, the tax guarantee system has been continuously developed and perfected, however, there is no denying that there are fewer researches of tax guarantee system in the educational circles compared with the other system of the tax law. In recent years, China has been actively preparing for the revision of the tax law. In 2015, the Legislative Affairs Office of the State Council collected the public opinions of Amendment to the Tax Administration Law(Exposure Draft) so as to adapt to the requirements of the fiscal and taxation system reform. Under the environment, tax guarantee system, as a system widely adopted by the tax law, also should keep pace with the times, and make preparation and efforts for the realization of the modernization of tax.In the paper, starting from the basic theory of tax guarantee system, the legal nature of tax guarantee system is explored. On the basis of analysis of the three different views, it is pointed out that people should not think tax guarantee is public or private, but should admit it has the public and private characteristics, and realize that they should “be based on the private law attribute, and give priority to public law purpose”.So far, there are mainly three aspects of problems in tax guarantee system in China. The first one is the source problem,the inaccurate understanding of the legal nature of tax guarantee results in the understanding bias of the source of the system and to some extent, affects the legislation and practice of tax guarantee system in China. The second one is the defects in the tax guarantee system design, mainly including narrower scope of application, higher limit on a guarantor qualifications, incomplete guarantee mode, the lack of the rules of invalid guarantee and the change, as well as obscure provisions of guarantor and taxation authorities’ related rights. The final one is problems in the practice. Although there are provisions of tax payment guarantee before tax preservation, departure tax payment guarantee and tax guarantee before the administrative reconsideration in the legislation, some problems in practice still cannot be effectively solve through the current legislation.The research and analysis are conducted on the relevant provisions of overseas tax guarantee from the applicable situation, types and realization way. It is found out that overseas tax guarantee has some features in the legislation, such as richer applicable situation, higher flexibility of margin guarantee, wider scopes of guarantors, permission of reasonable changes or replacement of guaranty, no compulsory enforcement of the tax authorities for tax guarantors, and the rules of financial group mortgage system, which well worth our thinking and reference. In order to improve the current tax guarantee system, China should make efforts from the following three aspects. First of all, China should solve the problem of the system positioning, identify the legal nature that tax guarantee system is based on the civil law. Secondly, China should perfect entity and procedures, change entrenched wrong ideas of “emphasis on the entity and ignorance to the procedures”, improve the specific contents of the system, and advance towards to the value goal of the system to solve the problems in practice, and promote the legal construction of tax system more effectively and conveniently.