On The Relationship Between The Invoicing Obligation And The Payment Defense Right

Although China’s tax laws and regulations require the receipt of invoices for business activities,this provision only reflects that the issuance of invoices is an administrative law obligation,it does not indicate the civil obligations of the parties to the civil rights and burdens on invoices.Payers often refuse to pay for goods or services on the grounds that the seller of the goods or service provider did not issue an invoice,which the court(including the different judgments of the Supreme People’s Court)decide cases inconsistently and did not reach a consensus,which brings obstacles and confusion to judicial practice.The logical idea of this article is: to show the chaotic relationship between the obligation to issue an invoice and the right of payment defense through two recent judgments issued by the Supreme People’s Court,then points the reasons for this chaotic relationship-the absence of relevant legal provisions,the confusion of judicial determination,and the differences in academic recognition.Then this article analyzed the problems in legislative practice,judicial practice,and theoretical recognition of the nature of the obligation to issue invoices,and then tried to introduce the method of TSET in common law system.The path determines the nature of the obligation of invoicing,and advocates judging whether the invoicing can generate a payment defense right in the case from the extent of the invoice’s substantial rights and interests,and then analyzes the legal basis of the payment defense right.Then by dividing two kinds of cases where contract with or without agreement relating the relationship between invoice and the right of payment defense.Finally,it shows the justification of the right of payment defense without issuing an invoice is discussed in detail.The structure of this article is as follows:The introduction part briefly describes the origin,significance and method of this article.The first part is main issues of the topic of this article.It briefly summarized judicial cases related to the obligation to issue invoices and the right of payment defense,then summarizes the two typical recent judgments made by the Supreme People’s Court,and then summarizes the contradictions in our perceptions of invoices presented by the two judgments.The second part is the basic theory of invoice.It clarify the concept,characteristics,type,issuing body,and function and role of invoices in China’s invoice system,and lay the foundation for subsequent analysis.The third part is the concept and nature of invoice obligation.Briefly introduce the concept of invoicing obligations,analyze the legislative practice and judicial practice to determine the nature of invoicing obligations,and then summarize the nature of invoicing obligations in the existing theoretical system.Finally,explore a new path and consider the introduction of test analysis of the common law system,and abandoning the distinction between contingent obligations and payment obligations in civil law system.The fourth part is the theoretical basis to generate the right of payment defense without issuing an invoice.It briefly describes the provisions on the right of defense in civil law(s)of China,points out the possible ways to generate the payment defense right by failing to issue an invoice,and then use the rational person hypothesis in economics,the principle of good faith,and the value of market transaction order to theoretically analyze the justification of right of defense.The fifth part is the relationship between agreements and the right to defend against payment.It classifies the agreed situation and clause model of both parties,and then discuss and analyze the issue that relationship between invoice obligations and the right of payment defense,it concludes that,(1)if there is no agreement,no payment defense right can be generated without an invoice,while the payer can recover damages resulted from the seller’s breach of contract;(2)For the agreement of “first payment and later payment”,no payment defense right can be generated for the non-issued invoice reason;(3)If invoicing shall be performed before payment is not a prerequisite for payment under the contract,failure to issue an invoice does not create the right to a payment defense,which can only constitute a general breach of contract,the payer can deduct the tax deductible from the special VAT invoice according to the principle of profit and loss.However,if it is agreed that invoicing is a prerequisite for payment,it should follow the principle of autonomy of will,the principle of good faith,and the value of market transaction order,to support the validity of the agreement under the theory test path in common law system,and decide fail to issue an invoice and generate the payment defense right.The part of conclusion.It restates the logical structure and summarizes the conclusion of the article.