The Research On The Allocation Of Domestic Consent Powers Of Tax Treaties In The View Of Worldwide Constitutions

The allocation of the domestic consent powers of tax treaties is the subject in relation to municipal law and international law,but it is firstly an issue with regards to constitutional law.Based on the constitutions and constitutional documents of all state numbers of UN,combined with theories concerning restrictions of powers,popular sovereignty,fundamental rights of citizens,the relations between international law and principal law,and the practice of typical countries such the USA,the UK,France,Germany and so on,from the perspectives with regards to rights protection and power restriction,this dissertation uses four chapters to demonstrate that there are some general theories and rules through worldwide constitutional provisions and practices and draws the main conclusion that tax treaties regarding fundamental tax affairs should be consented by legislation body with tax treaties governing non fundamental tax affairs approved by executive body.After having been accepted by domestic laws,tax treaties have the status of domestic laws,the force of domestic laws,or the same effectiveness as domestic laws,and further affect the fulfillment of the functions of tax regulations such as financial efficacy and policy role.the arrangement of the domestic powers of treaties laws can effectively avoids or reduces the conflicts between tax treaties and domestic tax laws,further influencing the legal status and force of accepted tax treaties in domestic legal systems.Apart from separate tax provisions or separate terms concerning the allocation of the domestic consent powers of tax treaties,considering the functions of rights protection and power restriction constitutions have,the states wholly regard tax affairs as one or more things involving civil rights,government powers,legislation,economy etc,and then link affairs under tax treaties to them in order to indirectly determine allocation of the domestic consent powers of tax treaties.In terms of who has power to consent a certain tax treaties,there are several models on how to stipulate this,which includes separately determining the relevant power of executive body,separately describing the related power of legislative body and respectively stipulating the relevant powers of them,but it essentially means that executive body and legislative body share the relevant powers,while attaching importance to guaranteeing the powers of legislative body.In terms of allocation criteria on how to arrange the powers of the domestic consent powers of tax treaties,there are standards based on the nature of the affairs under tax treaties and standards based on the members of sate parties,the names of tax treaties and so forth,but none-natural criteria are all built on the nature of the affairs under tax treaties.Based on principle of statuary taxation,the countries divide the affairs under tax treaties into fundamental tax affairs and non-fundamental tax affairs.tax treaties regarding fundamental tax affairs should be consented by legislation body with tax treaties governing non fundamental tax affairs approved by executive body.Due to the divergences regarding the definition of statuary taxation,the states have mixed views on fundamental tax affairs and non-fundamental tax affairs,but fundamental tax affairs generally involve the types of tax,tax collection and administration,tax breaks,tax rates,taxpayers,tax targets,tax basis and so on.The statuary criteria concerning the allocation of the domestic consent power of tax treaties in China is logically and jurisprudentially the standards based on the nature of the affairs under tax treaties,but there are some practice problems such as the divergence regarding the nature of the affair under tax treaties,failing to differentiate the natures of the affairs and so forth.This is probably attributed to the legislative practices that Chinese tax legal system is mainly comprised of executive laws,yet with the gradual establishment of principles of statuary taxation,these powers conferred by The NPC and laws have begun to narrow.Tax treaties corresponding to these executive powers should be consented by the NPC or the NPC standing committee in accordance with the constitution,legislation law,the law of the P.R.C on the procedure of the conclusion of the treaties etc.