"Truly Making Out VAT Invoices" Does Not Constitute The Crime Of Falsely Making Out A Specialized VAT Invoice

With the development of economy of China,especially after the taxation reform of “replace business tax with value-added tax”,although some taxpayers carried out actual transactions,as they could not provide or obtain value-added tax special invoices for tax credit,the other General Taxpayers would issue the value-added tax special invoices on their behalf in accordance with the transaction amount,and pay corresponding tax,this type of behavior is abbreviated as “actual filling on behalf of others”.According to The Interpretation on Application of the Decision of the NPC Standing Committee Concerning the Punishment of Falsely Filling,Forgery or Illegal Sale of Value-Added Tax Special Invoices,which is issued by the Supreme People's Court,Falsely Filing refers to the situation that the tax payer has conducted actual business activities,but the value-added tax special invoice in relation to the business activities is issued by other tax payers.At present,in the judicial context,the above mentioned situation meets all the constitutional elements of the crime of falsely filling of value-added tax special invoices under the Criminal Law,and the “actual filling on behalf of others” is classified as the third case,which is to ask other tax payer to issue the invoice on behalf of the actual taxpayer,as defined as the crime of falsely making out value-added tax special.However,if the “actual filing on behalf of others” behavior is premised on the existence of a real transaction and the invoice amount is in line with the actual transaction,the taxpayers do not have the purpose to defraud taxes subjectively,and it doesn't cause the loss of national taxes objectively.Under such circumstances,instead of being identified as the crime of falsely making out value-added tax special invoices,this behavior should be regarded as illegal acts in general administrative sense,and should be punished by the invoice management institution.It is contrary to the basic spirit of the law to impose severe sentences on acts that have no harmful consequences.This paper will apply the empirical method and logical empirical method,starting from that the “actual filling on behalf of others” behavior does not constitute the crime of falsely making out value-added tax special invoices,and through the analysis of dispute cases,according to the thinking of asking questions,analyzing problems,and solving problems,to emphasis on the dispute issues on falsely filling in judiciary.Through the analysis of the behavior of “actual filling on behalf of others”,it is found that there are theoretical disputes and judicial difficult on the current understanding of the constitutive elements of the crime of falsely making out value-added tax special invoices,the determination of the scope,and the confirmation of the amount.The reason is mainly due to the inadequacy of the setting of falsely filling in Criminal Law.Regarding to the conviction and sentencing of the crime of falsely making out value-added tax special invoices,the perpetrator must have a subjective intention to defraud the national taxes from the subjective point,and this is not clearly stated in the law;Analyze on the objective point,The scope of the act is ambiguous in Criminal Law,which makes it difficult to apply in justice,it is necessary to clarify the categories of falsely filling in the Criminal Law,that the implementation of falsely filling should satisfy two conditions that it is really hazard to society and should be subject to penalties.The identification of falsely amount should also in line with the fairness of Criminal Law.Through these aspects to limit the attacking scope on the falsely filling behavior of the Criminal Law.From the application of penalty,compared with other similar crimes,the penalty configuration of falsely filling is not reasonable,and the punishment for the behavior is not only should meet the requirements of the principle that crime and punishment should prescribed legally,and should also meet the requirements of the principle that crime and punishment should be proportionate.For the above-mentioned controversy on the existence of falsely filling,it should be resolved from the three aspects of clarifying the constitutional elements of the crime,perfecting judicial interpretation,and balancing crimes and penalties.Through the argumentation of above issues,it is hoped that a clearer understanding of the practical issues concerning the false filling out special VAT invoices can be formed.It can help to convict and punish crimes in judicature,as well as to promote the establishment of the crime of false filling out special VAT invoices and to improve further punishment configuration.