Research On The Exercise Of Tax Priority In Civil Enforcement Procedures

As an important right to guarantee national tax revenue,the performance of tax priority is directly related to national and social public interests.Under the circumstance of increasing risk of tax collection and payment and imperfect tax administrative execution,it is of great practical significance to ensure priority of tax collection and payment and timely storage of tax by exercising tax priority in civil execution procedure and using mature and efficient means of civil execution to guarantee the realization of rights.However,in judicial practice,it is difficult to exercise the tax priority in the civil enforcement procedure,not only does not use the power of justice to complete the task of tax protection,but becomes a big problem in the civil enforcement procedure.On the one hand,China's Tax Collection and Administration Law is too general to tax priority,resulting in the inherent deficiencies of the right itself.It is mainly reflected in the following aspects: it is impossible to judge when the tax priority comes into being,the right publicity system is not perfect,the scope of application is not clear,and there is no clear and feasible regulation on how to solve the conflict between the tax priority and other priority rights.On the other hand,the civil enforcement procedure is mainly constructed to protect the creditor's rights of private law,mainly based on the procedural provisions of civil litigation law and related judicial interpretation,and the lack of connection with it in the tax law system,resulting in the exercise of tax priority in the civil enforcement procedure is more inappropriate.It is mainly reflected in the following aspects:there are no relevant provisions on the examination standard of rights,the time limit and way of exercising rights,and the relief of damaged rights in the civil execution procedure.The above chaotic exercise of the right makes the guarantee of tax priority only stay in the law,but has not really formed an operation mechanism in civil enforcement practice.In order to solve the dilemma of the exercise of tax priority in the civil enforcement procedure,this paper compares the relevant regulations of the right of tax priority itself and the operation of the procedure in Japan and the United States,and absorbs the beneficial parts of them,so as to provide reference for the exercise of tax priority in the civil enforcement procedure in China.Through comparative analysis,this paper puts forward a scheme to solve the dilemma of tax priority in civil execution procedure from two aspects of entity and procedure.In terms of the substantive provisions on the exercise of rights,the time of tax verification should be regarded as the time of the occurrence of tax priority,which is not only convenient to define the sequence of compensation in the conflict of rights competition and cooperation,but also beneficial to maintain the security of transactions.Strengthen the countervailing effect of right publicity;Strictly apply tax legalism,make it clear that taxes collected by non-tax departments,such as customs duties,do not have priority,and tax late payment fees and interest,because they do not have the nature of punishment,different from administrative fines,should belong to the scope of application of tax priority;When judging the contesting and contesting conflicts of tax priority,mortgage and pledge according to time sequence,it is necessary to clarify the burden of proof and the subject of the time when the right arises.Tax priority should be inferior to lien and cannot be judged by time sequence.When consorting with priority of construction project funds,it should be made clear that tax is inferior to workers' wages and other parts related to survival interests of construction project funds,and the other parts are priority to be compensated by tax.When contesting with the right of set-off,the right of set-off should be allowed to take precedence over the exercise of tax priority.In terms of the procedural provisions of exercising rights,appropriate standards should be adopted to examine tax priority;The time limit for exercising tax priority is two years.After the time limit,the right will be terminated automatically,so as to urge tax authorities to exercise their rights in a timely manner.It is stipulated that in the civil execution procedure,the tax department can either apply for execution or realize the tax priority by participating in distribution.When the tax priority is damaged,it can be relieved by the way of objection lawsuit and public interest lawsuit filed by procuratorial organs.