On The First Penalty Exemption For Tax Evasion

Article 211,paragraph 4 of the Criminal Law of the People's Republic of China stipulates that "after the tax authorities have issued a notice of recovery according to law,they shall pay the tax payable and pay the late payment fee,and if they have been subject to administrative punishment,they shall not be investigated for criminal responsibility;however,Except for criminal punishment for evading tax payment within five years or for more than two administrative penalties by the tax authorities.This is the subject of the “first penalty exemption” clause for tax evasion.In fact,after the introduction of this clause,based on the mufti-electoral connection in the operation,the large discretionary scale,and the social universality of tax evasion itself,the phenomenon of “same sin and punishment” in the practice of the medium-frequency has caused public opinion.Moreover,in judicial practice,the definition of this clause is rather vague,and the understanding of the text is prone to ambiguity,especially the definition of “secondary” in “secondary administrative punishment”.There are cases where it is difficult to make a reasonable judgment.The administrative agency and the judicial organs on the scope of the functions of tax evasion,the definition of the limits of tax administrative punishment and criminal punishment,the connection between the administrative tax collection and management system and the criminal justice policy are all urgently needed to be resolved.It is not enough for the law to be self-explanatory,how to effectively improve the application of the "first penalty exemption" clause,the link between the administrative law enforcement and the criminal justice connection mechanism,and the addition of penalties to the legislation on tax evasion,in order to avoid the abuse of "first offense and exemption".While maintaining the criminal law's moderateness,achieving the goal of consistent crimes and punishments will be the focus of this article.The author attempts to find a path to perfect the“first offense and exemption”clause through data analysis of referee documents,Chinese and foreign legal comparisons,and social practice research.Specifically,it is to strictly interpret or even reinterpret existing regulations to achieve the compatibility of crimes and punishments,and to avoid theimbalance of crimes resulting in the impunity of the penalty clause and thus damage the judicial dignity.For example,the "first offense exemption" leads to the misunderstanding of "spending money to buy a sentence" and the excessive discretion of various departments in the process of combining execution,which has violated the original intention of "tempering justice with mercy" and needs to be amended by law.Judicial practice and the combination of administrative law and criminal law are further regulated and improved.