Theoretical Research And Path Construction Of The Taxation Law Institutions Innovation In Shanghai Free Trade Zone

“No taxation preference, but institutions innovation” can be regard as a consensus in the establishment of taxation law institutions in Shanghai(China) Free Trade Zone(hereinafter referred to as “FTZ”). Then, why don’t we need taxation preference? What is institutions innovation? Why we need institutions innovation? How to accomplish it? This thesis tends to give a preliminary answer to this serious of major theoretical questions.The first chapter illustrates, through three dynamic and inter-active levels, the innate fetters of the taxation-incentive mode in FTZ. From the “theory to practice” level, taxation preference has an ambiguous and dialectical relation with the principle of neutral taxation and equitable taxation. From the “domestic to foreign” level, from the insight of domestic law, the current taxation preference has substantial collision with the content of the principle of statutory taxation, and if it is treated as tax expenditure, its absence in public budget entails deeper contradiction with Budget Law. From the insight of international law, if taxation preference policy is solely carried out in FTZ, then it most probably to fall into the framework of harmful taxation practices of OECD, which will reduce our country to a passive position in international taxation cooperation. From the “history to future” level, taxation preference has played significant historical role in attracting foreign investment and therefore accelerating economic growth of our county, but currently taxation preference has lowered its attractive effect as regards foreign investment. And considering in combination with the strategic location of FTZ in the new round of reform and opening-up, all evidence shows that solely use taxation preference to promote the partly economic development of FTZ is not the goal of establishing FTZ. What FTZ truly needs is the reform dividends brought by institutions innovation.The second chapter analyzes the question of “why institutions innovation is needed” from four different subject angles, namely philosophy, jurisprudence, new institutional economics and sociology of law, but substantial it is a stepwise in-depth deduction process. Firstly, Searle’s institutional fact theory explains the philosophical foundation of institutional theory as societal substance. Secondly, Mac Cormick’s double standard practice theory implicates that legal institutions exist as a institutional fact, and therefore natural taxation legal institution is also a institutional fact. Thirdly, Knous’ s new institutional economics theory proves that institutional innovation can enhance economic performance, thus “taxation legal institutional innovation can enhance economic performance” is the core reason for this reform. Lastly, the “institutions” in new institutional economics does not only include formal rules, but also informal bindings and performance mechanisms, while sociology of law can outline a more comprehensive picture of the inter-relation between law and society. During the process of research into “why institutional innovation is needed”, it naturally brings about the answer to the question of “what kind of institutional innovation is needed”. And the answers all point to the requirement of “clarity” of taxation laws. That is, the FTZ taxation law institutions need to regard further enhancement of clarity of taxation laws as the purpose and requirements of innovation during the process of institutional innovation.The third chapter comprehensively illustrates the principle of taxation law clarity from a variety of aspects, providing theoretical basis for using this principle as the guidance principle for institutional innovation. Starting from the difference and relation between law clarity and law certainty, this chapter specifies the detailed meaning of law clarity. Due to the reason that current research into taxation law clarity lacks theoretical resources, and also there is homogeneity between criminal law and taxation law, this thesis tries to make reference to criminal law theory bibliography to make illustration about the value, meaning, position, definition and main content of the principle of taxation law clarity. From the tense relation between the principle of statutory taxation and the principle of substantial taxation, this thesis creatively raises two contradictory sets of ideological systems of formality taxation and substantial taxation, takes the position of good faith, and conducts the deduction of the goal of taxation justice; therefore reconstructs the taxation law principle system centering the principle of taxation clarity.The fourth chapter applies the theories above to specific institution design. The most ambiguous part of taxation law is the general anti-tax avoidance rules in special taxation adjustment, and though we can use super-valuationism to further specify these rules, we still would be trapped by serial paradox. The negative list promoted by FTZ, has developed from the foreign investment management to market access institutions, and the real legal meaning of it is to make clear-cut distinction between public and private. Therefore, the thesis proposes to learn from the achievement of reform of FTZ negative list management mode, establish “general anti-taxation avoidance negative list management mode”, to provide clarity for taxation enterprises and taxation authorities while widen the space for taxation agencies, and therefore set up trilateral positive inter-active relation between taxation enterprises, taxation agencies and taxation authorities.