Predicament And Outlet Of Judicial Cognizance On The Crime Of Falsely Making Out VAT Special Invoices

In this paper,100 verdicts about the crime on China Judgments Online are the sample,and the judgments made by the grass-roots,intermediate and senior people's courts from 2000 to 2016 in 16 provinces of the country are contained.Through the investigation and analysis of the case decisions,the author finds out that the judicial practices have different cognizance conclusions on some new behaviors of falsely making out VAT special invoices,explores that the surface cause of the dispute is the different views on the cognizance of constitutive elements of the crime in judicial practice,and further concludes that the root of the dispute lies in whether the protection of the legal interest of the crime is the single legal interest or the double one.By returning to the function of the VAT special invoices and the legislative purpose,in this paper,the author holds that the protection of the legal interest of the crime is the double legal interest,then under such a guidance,the author puts forward the way that can be widely used in judicial practice to do cognizance of constitutive elements of the crime.This paper falls into four parts:In Part ?,the author selects 3 representative cases from the sample to illustrate the predicament of the crime in the current judicial practice.By sorting and summarizing the judgments of the courts at all levels,the author finds out that there are three situations in which outstanding disputes about the cognizance on the crime exist: Qualitative dispute on the falsely making out behavior without fraudulent tax danger,divergence on falsely making out behavior with no tax fraud purpose,and disunity on the cognizance method of the criminal amount.In addition,the author finds out 3 typical cases of these disputes and makes specific analysis.In Part ?,the author analyzes the surface reason and the root of the dispute of the judicial cognizance on the crime in the judicial practice.By combing the disputes of the judicial cognizance on some new cases in thejudicial practice,the author finds out that the surface cause of the dispute is the different views on the cognizance of constitutive elements of the crime in judicial practice,and further finds out that the root of the dispute lies in the different understandings of the protection of the legal interest of the crime-the single legal interest theory: Invoice order theory and the double legal interest theory: Invoice order theory and tax benefit theory,accordingly,there are different evaluations on the constitutive elements cognizance because of different legal interest theories.In Part ?,the author puts forward the way out of the predicament.By returning to the function of the VAT special invoices and the legislative purpose,in this paper,the author holds that the protection of the legal interest of the crime is the double legal interest: Invoice management order and national tax benefit.In Part ?,under double legal interest guidance,the author puts forward the way that can be widely used in judicial practice to do cognizance of constitutive elements of the crime.Firstly,from the objective,the author does cognizance on the falsely making out and fraudulent behavior: The falsely making out behavior conforming to the constitutive elements of the crime must be a danger of infringing the national tax benefit,the fraudulent behavior must have the falsely making out behavior cognizance as the premise,and the behavior that the actor deducts to the tax authorities the VAT special invoice having the falsely making out behavior with the threat to the tax benefit can be identified as the fraudulent behavior.Secondly,from the subjective,the falsely making out subject has the criminal purpose of defrauding national taxes.The behavior simply in order to increase the performance and exaggerate the economic strength without any purpose of defrauding taxes should not be identified as the crime;and the behavior of the small-scaled taxpayers to seek equal trading opportunities and get equal trading status and let others act honestly for themselves without any purpose of defrauding taxes should not be identified as the crime.Finally,as the basis for the conviction and sentencing of the crime,the cognizance of the amountof the crime should be identified by the following points: The amount on the VAT special invoice having falsely making out behavior conforming to the constitutive elements of the crime is identified as the falsely making out amount,and the amount deducted from the tax authorities after the falsely making out behavior is identified as the fraudulent tax amount.Conviction and sentencing should be carried out on such a basis.