Analysis Of The Judicial Application Of Article 204 Of The Criminal Law

The crime of defrauding export tax rebate comes into being with the implementation of the national export tax rebate system,which is a kind of tax crime with serious social harm.The crime of defrauding export tax rebates is stipulated in the Article 204 of the criminal law.In the process of judicial application of Article 204 of the criminal law,there are some controversial issues,such as how to determine the nature of the act of cheating export tax refund after the actor pays the tax,how to determine the nature of the tax paid,and whether to deduct from the amount of crime.For these problems,there is no relevant judicial interpretation in China to clearly explain,and there is no relevant research in the academic community,judicial personnel are quite thorny about this.For these reasons,this paper attempts to discuss the nature of Article 204,paragraph 2,of the criminal law,the understanding of "taxpayer" in Article 204,paragraph 2,of the criminal law,and whether the cost of the crime should be deducted from the amount of the crime of defrauding export tax rebate if use paragraph 1 of Article 204,hope to provide some reference significance for correct application of Article 204 of the criminal law,especially the Article 204 of the criminal law Section 2,so as to reasonably regulate the behavior of defrauding export tax rebate after tax payment.There are more than 25000 words in this paper,mainly including four parts:The first part is the basic information of the case.Firstly,it introduces the cause of the case,the case and different opinions of Wang’s case of cheating export tax rebate,and then sums up the focus point of the case through different opinions,that is,how to understand and apply Article 204 of the criminal law.This issue includes three key points:whether the second paragraph of Article 204 of the criminal law is an attention provision or legal fiction;how to understand the "taxpayer" in the second paragraph of Article 204 and the tax which have been paid should be deducted or not if apply the first paragraph of Article 204 to calculate the amount of crime.The second part is the jurisprudential analysis about the relevant issues in this case.The three key issues raised in the first part are analyzed in detail in this part.First of all,starting from the concept and characteristics of legal fiction and notice provisions,this paper introspects the methods of distinction between them which have been put forward by theacademic community.On this basis,it puts forward two standards of distinction,and analyzes that Article 204,paragraph 2,belongs to legal fiction.Secondly,combined with the relevant theories of tax law and criminal law,it is concluded that "taxpayer" is an individual or unit that substantially meets the requirements for the establishment of tax obligation stipulated in tax law.When an individual uses a unit to commit an individual crime,an individual can also establish "taxpayer".Finally,through the investigation of the substantial reason of the dispute about the deduction of criminal cost by the amount of crime existing in the property crime for a long time,and then returning to the field of the crime of defrauding export tax rebate,it is concluded that the criminal cost of the part of tax payment shall not be deducted when the amount of crime of defrauding export tax rebate is calculated according to paragraph 1 of Article 204.The third part is the conclusion of this case.According to the current legal provisions and legal analysis opinions,specifically analyze the focus point of this case,and concludes that Wang’s behavior only constitutes the crime of cheating export tax rebate,not the crime of tax evasion;the tax of 8963686 yuan paid by Wang’s company under his control should not be deducted from the amount of the crime,and Wang should bear the crime of cheating export tax rebate of 12039870 yuan Criminal liability.The fourth part is the enlightenment of this case study.At present,there are great differences in the understanding of the second paragraph of Article 204 of the criminal law in judicial practice,which affects the judicial unification.It is suggested that the uniform judicial interpretation of this paragraph should be issued.This paragraph belongs to the legislative error that the circumstances of sentencing for paying part of taxes are confused with the circumstances of conviction.It is suggested that the provisions of this paragraph should be abolished in due time,and the payment of part of taxes should be considered as the circumstances for sentencing.