The Application And Perfection Of Criminal Exemption From Tax Evasion

Ten years after the introduction of the crime of tax evasion,the introduction of the Criminal Law Amendment(Seven)to the crime of tax evasion,the biggest bright spot is the addition of the fourth paragraph of the criminal exemption clause.The establishment of this clause is the product of conforming to social development under the specific historical background,and has also played a lot of positive role in practice,on the one hand,it can ensure the stability of national tax revenue,on the other hand,it is an important embodiment of China’s lenient criminal policy in the field of tax evasion.With the development and practice of society,the criminal exemption clause of tax evasion has gradually exposed some problems in the application,the phenomenon of "spending money for ransom" is not uncommon,the recent popular discussion of "Fan Bing Bing Yin yang contract case" is a typical of them.Whether the establishment of the criminal exemption clause on tax evasion is reasonable has aroused the heated discussion in the society,and the discussion on the crime of tax evasion and its criminal exemption clause is more active.The body of this paper is divided into four parts,which will be divided into four chapters to discuss the crime of tax evasion and its criminal exemption clause,including the nature of the criminal exemption clause of tax evasion,the applicable conditions,the value and dilemma faced in practice,and the thinking of further improving the criminal exemption of tax evasion.The first chapter mainly discusses the nature of the criminal exemption clause,which is described in two sections.The first section begins with the crime of tax evasion,and then analyzes its legal consequences.Section II mainly introduces the different views of the academic circles on the nature of the criminal exemption clause,including "the cause of the crime" and "the objective punishment conditions."The second chapter focuses on the application conditions and limitations of criminal exemption clause,which are divided into three sections.The first section expounds the application of the subject of the crime of tax evasion,defines and analyzes the relevant concepts of taxpayers,withholding agents and unit crime.The second section combs and analyzes the provisions of the perpetrator for the performance of administrative obligations within the prescribed time.The third section analyzes the applicable limitation of the criminal exemption clause of tax evasion,including the time limit of five years,the restriction of criminal punishment and the restriction of the second or more administrative punishment.The third chapter mainly expounds the value of the criminal exemption of tax evasion in judicial practice and the dilemma faced in the application,and analyzes the relevant reasons,which are divided into two sections.The first section is value analysis,first of all,can give full play to the advantages of the "binary" crime model,can better guide and motivate the perpetrators to fulfill their tax obligations,is conducive to crime prevention and protection of human rights.The second is to reduce the cost of the administrative organs to crack down on illegal tax evasion and improve the efficiency of law enforcement by administrative organs.Finally,it can better reflect the spirit of humility of criminal law.The second section is the dilemma analysis,from the "unfair application of criminal law","the general prevention function of the elimination of criminal law","excessive use of the pre-procedure of administrative punishment","the bridge of execution and the supervision mechanism of the prosecution is not perfect" and "the insufficient relief of the administrative rights of taxpayers" five aspects.The fourth chapter focuses on some thoughts on perfecting the criminal exemption of tax evasion,which is mainly discussed from the legislative level and the system interface level.