Legislative Evaluation Of The Article 201 Item 4 Of The Criminal Law

With the progress of the society,the concept of human rights protection has become more and more pervasive.The idea of criminal legislation,such as moderation of penalty and non-criminalization,has also gradually prospered.The criminal policy directing legislation of the crime of tax evasion has also changed from “Strike-Hard” to “Tempering Justice with Mercy”,which is reflected in the Article 201,Item 4 of the Criminal Law,coming into effect since the Criminal Law Amendment(VII).That is,any person who has conducted the acts mentioned in item 1 of the Article 201,but has in time “paid taxes and fines upon recovery notice and has been subject to administrative penalty” shall not be subject to criminal liability with some restrictions.This paragraph manifests the “temper” of the criminal policy,and shows that the Criminal Law intends to impose lenient punishment on the “first offender” of the crime of tax evasion.However,due to the differences in the basic logic of “when there are constitutive elements of crime,there shall be criminal liability” between item 4 and the other crimes in the Criminal Law,the provision has been faced with the divergence in understandings and lack of reasonable grounds of legislation,causing the trouble both in theory and practice.The article studies the legislative issues of Article 201,item 4 of the Criminal Law through three parts.Firstly,the legislative content of the Article 201,item 4 of the Criminal Law is clarified.And beginning with the applicable premise of “not being subject to criminal liability” in this provision is that the acts conform to the constitutive elements of the crime of tax evasion,the author raises the question that the provision is inconsistent with the traditional criminal law theory.Then,through the understandings of “not being subject to criminal liability” and the comparison with other similar provisions in the Criminal Law,it is clarified that “not being subject to criminal liability” in item 4 means exemption from criminal liability.At last,through evaluating and analyzing the scholars' different understandings about the nature of Article 201,item 4 of the Criminal Law,it is concluded that the two viewpoints,“non-criminal acts” and “the negative objective punishment condition”,can hardly give reasonable interpretation.Whereas the primary cause is the issues of the legislation itself.The next is the legislative issues of the of Article 201,item 4 of the Criminal Law.First,the provision collides with the general principle of Criminal Liability.Respectively from external and internal relations of criminal liability,it is maintained that the provision doesn't conform to the basic theory of the relation between crime and criminal liability,and it fails to distinguish the quality and quantity of criminal liability explicitly.Second,the grounds of the quality and quantity of criminal liability are confounded.Respectively analyzing from the external investigation of grounds of the quality and quantity of criminal liability,the internal investigation of grounds of the quantity of criminal liability and the investigation of criminal policy grounds of criminal liability,it is concluded that the provision confounds the grounds of the quality and quantity of criminal liability,the acts after committing tax evasion crime and the “first offender” factor cannot become the grounds of exemption from criminal liability and the criminal policy of “Tempering Justice with Mercy” cannot be used as the basis of exemption from criminal liability.The third is the conflicts with the basic principles of suiting responsibility and punishment to crime and fairness,including the conflict between the Criminal Law's modest value and the principle of suiting responsibility and punishment to crime and the conflict between the Criminal Law's economic value and the principle of fairness.The fourth is the conflicts with the legislative purpose of the tax evasion.In the first place,the legislative purpose of the tax evasion crime is clarified,and it is maintained that the legislative purpose of Article 201,item 4 of the Criminal Law should be in keeping with the purpose of protecting the order of administration of revenue collection.And then through analyzing that the purposes of legal penalty of the provision is to achieve the general prevention and the individual prevention of the crime of tax evasion,combined with judicial practice,the conclusion that the provision can hardly achieve the above purposes,and furthermore can barely achieve the purpose of protecting the order of administration of revenue collection is finally reached.The fifth is the specific issues in the provision,including the relation among “paying taxes,paying fines upon recovery notice and having been subject to administrative penalty” is not clear enough,the conditions of “being subject to administrative penalty at least twice” are ambiguous and there are few relevant provisions about how to connect the administrative law and criminal law.Finally comes the legislative improvement of Article 201,item 4 of the Criminal Law.First,“shall not be subject to criminal liability” should be amended to “may be given a lighter,mitigated punishment or exempted from punishment”.Second,judicial explanation regarding the application of “may be given a lighter,mitigated punishment or exempted from punishment” should be added,and improving suggestions are put forward here.The third is to clarify the relationship among “paying taxes,paying fines upon recovery notice and having been subject to administrative penalty”,corresponding with the administrative measures taken by the tax authorities.Forth,the conditions of “being subject to administrative penalty at least twice” should be limited to the behaviors conforming to the criminal constitutive elements of tax evasion.Fifth,the relevant provisions about connecting administrative law and criminal law in tax evasion crime cases should be supplemented,including improving the communication and coordination between tax authorities and judicial authorities from the legislative level,clarifying the standard to examine whether the administrative documents made by the tax authorities can be used as evidence as well as confirming that taking whether there being a dispute or not in the case as one of the criteria to reinvestigate and obtain evidence.