Judicial Cognizance Of The Crime Of Falsely Writing Vat Special Invoices

The crime of falsely writing VAT special invoices is a new crime established after the formal implementation of value-added tax system in China in 1994.Since its birth,it has shouldered the mission of guaranteeing national tax security.At that time,the crime of tax evasion and fraud by using false special invoices was rampant.As the largest tax in China,value-added tax is an important source of national financial revenue,so the establishment of this crime played an important role in cracking down on false invoices.With the prosperity and development of market economy,especially under the background of the policy of replacing business tax with value-added tax,the scope of value-added tax collection has been further expanded,and invoices have been widely used as commercial documents.However,China implements the system of “tax control by invoice”,so the issuing,receiving and management of invoices must strictly follow the relevant administrative laws and regulations,especially the special VAT invoices.Therefore,under the dual characteristics of VAT special invoice deduction function and public credit,the purpose,way and behavior of false invoice are more diversified,complex and hidden,and the corresponding crime is also facing the risk of expanding its application.At present,the current situation of the criminal regulation of this crime mainly shows that the overall number of cases shows an increasing trend,and the second instance court has a high rate of revision.In order to limit the punishment range of this crime reasonably,the theoretical and practical circles have been actively exploring and interpreting the constitutive elements of this crime through different paths.This paper collects 100 copies of judicial documents on the crime of falsely writing special VAT invoices from 2016 to 2020 through China Judicial Documents Network,and analyzes and statistics different opinions on the application of this crime.Specific differences in judgment are mainly reflected in the subjective should have tax fraud and other purposes,whether the fraudulent behavior should have tax fraud or the risk of causing the loss of national tax money and the different views on the amount of fraudulent.Centering on the differences in the determination of the constitutive elements of this crime,this paper,through sorting out the corresponding theoretical disputes,mainly including the disputes between the crime of conduct,the crime of purpose,the crime of danger and the crime of actual harm,compares and analyzes the shortcomings of the above theoretical views.Under the circumstances of different judgment standards and constant theoretical disputes,the article returns to the determination of illegality of the crime of falsely writing VAT special invoices.There exists a dispute between the theory of single legal interest and the theory of complex legal interest around the protection interests of this crime.This paper analyzes the administrative illegality of the act of false opening,that is,it violates the management order of VAT special invoice,and compares the harm degree of false opening and false opening crime,and points out the necessity of introducing the legal interest of national tax security.Then through the purpose of the establishment of the crime,the function of deduction and the relevant judicial interpretation,the criminal illegality of the act of false opening lies in the danger of defrauding the state tax.At the end of this paper,the corresponding suggestions are put forward.First,the identification of false opening behavior should conform to double judgment standards,the administrative illegality of false opening behavior lies in whether there is substantial transaction,and the criminal illegality of false opening behavior lies in whether there is danger of tax fraud.And distinguish the invoicing party,the introduction party and the invoicing party,refine the identification standard on its fraudulent behavior of tax fraud risk.According to the false opening behavior of billing party and introducing party,the danger degree is divided,and the false opening behavior with less danger is criminalized with subjective purpose.Second,the amount of the crime should be a single accounting,in check the corresponding false behavior with tax fraud risk after the cumulative calculation of false amount,to false amount of the actual deduction of the part of the tax fraud amount.In order to reasonably limit the scope of punishment of this crime,bridge the judicial practice of judgment differences.