Doubts On The Rationality Of The Preposition Of Administrative Penalty For The Crime Of Tax Evasion

The original intention of legislation of "administrative penalty pre exemption clause" of tax evasion crime is reasonable to some extent.However,the processing results of Fan Bingbing's tax evasion crime of 200 million innocent and airline stewardess' s smuggling crime of 80 thousand guilty has aroused serious doubts in the society.Therefore,it is of great practical significance to explore the irrationality of "administrative penalty pre exemption clause" of tax evasion crime and put forward reasonable suggestions accordingly.In order to draw a conclusion whether the "exemption clause" is reasonable or not,it is necessary to make a qualitative study on the "exemption clause".There are many general explanations about the nature of "exemption clause" of tax evasion in the legal circle,such as"exemption clause for first offence","excusable clause","justifiable clause" and "objective penalty clause".This paper makes a qualitative analysis of "exemption clause" in combination with Fan Bingbing's tax evasion case,and the conclusions are as follows: first,after the tax authorities have issued the notice of recovery according to law,the tax authorities will not investigate the criminal responsibility for the overdue fine and the overdue tax payment,which has been subject to administrative punishment--the essence of the "exemption clause"of the crime of tax evasion is the objective punishment,also known as the restricted punishment;second,"except for the criminal punishment for tax evasion within five years or the administrative punishment given twice or more by the tax authorities ”--This provision is an exception to the objective penalty conditions.Then from the perspective of jurisprudence,criminal policy,Criminology and judicial practice cases,the author questions the following disadvantages of "exemption clause" : first,"exemption clause" is the product of criminal policy abuse,which violates the theory of crime constitution and the principle of suiting crime to punishment;second,"exemption clause" violates the principle of legislative fairness;third,from the perspective of criminal psychology and tax,it can be seen from the high corruption judicial cases that the "exemption clause" will inevitably encourage tax evasion to further spread.To sum up,the original intention of the "exemption clause" is reasonable,but its disadvantages are also obvious.At the same time,the rationality must be based on the legal rationality.In view of this,this paper puts forward the following suggestions for the modification of tax evasion: first,abolish the "exemption clause";second,introduce light penalties such as control,criminal detention and single penalty for tax evasion;third,set up "articles that can be lenient,mitigated and exempted before administrative penalty";fourth,we should inform the tax authorities before the public prosecution of the crime of tax evasion;fifth,we should appropriately raise the minimum amount standard for entering the crime through judicial interpretation,and deal with the crime of tax evasion leniently;Sixth,formulate specific sentencing rules for the crime of tax evasion.