| The fourth paragraph of Article 201 of the Criminal Law of the People’s Republic of China stipulates that "in the case of the act mentioned in the first paragraph,after the tax authority has issued a notice of recovery in accordance with the law,the tax payable and the overdue fine have been paid,and have been subject to administrative punishment,criminal responsibility shall not be investigated;however,except for those who have been subject to criminal punishment for evading payment of tax within five years or have been subject to administrative punishment twice or more by the tax authority".Since the article came out,the theorists have been arguing about it.Specifically,first,what is the nature of the article? Second,does the tax authority in this article have priority? In terms of applicable conditions,how to determine whether the actor has established the three conditions of "making up the tax payable,paying the overdue fine,and having been subject to administrative punishment" ? In terms of the applicable period,is it limited to the time before the public security organ files a case or can it be applied at all stages of criminal proceedings? Does the applicable subject include withholding agent? Third,how to understand the "criminal punishment","twice" and "administrative punishment" in the "proviso"(formerly referred to as this article in the proviso),and how to define its extension? First of all,the particularity of this provision is to transform the criminal responsibility that the actor should bear when he first committed this crime into administrative responsibility,which is essentially the exemption of the first offence of the reversal of punishment.Secondly,given that there are too many disadvantages in the preferential treatment of tax authorities,and the administrative power and judicial power should be independent and equal,the preferential treatment of tax authorities is not appropriate.For the applicable conditions,we should use the method of substantive interpretation to understand and grasp,and we should judge whether the actor has it in essence.In addition,if the applicable period is not limited,the actor can trample on the dignity of the law at any time according to his will,waste judicial resources and harm the rule of law.Therefore,the applicable period should be limited before the public security organ files a case.Compared with the taxpayer,the withholding agent’s tax evasion is more subjective,more harmful and more harmful.Therefore,the withholding agent should not be allowed to become the applicable subject.Finally,in line with the principle of fairness and justice and the principle of suiting crime and punishment,the extension of some words in the "proviso" should be relatively expanded.The starting point of "within five years" shall be extended to the date when the principal punishment and administrative punishment are completed.The extension of "criminal punishment" is defined as that the law only needs to make a negative evaluation of it-declare it guilty.As for the "second time" in the "more than two times of administrative punishment",it should be applied flexibly at the discretion of the judge according to the actual situation.The "administrative punishment" is essentially a fine,and the administrative punishment made by the tax authorities in accordance with the tax law for all acts of tax evasion that endanger tax collection and management belongs to the administrative punishment in this provision.In addition,in view of the relatively unclear and overly lenient provisions of this article,the problem of the perpetrator should be clarified and improved in the legislation.For example,it is expressly stipulated that the applicable time limit should be changed from "no investigation of criminal responsibility" to "should be mitigated,mitigated or exempted from punishment" before the public security organ files the case,so as to achieve the adaptation of the crime and punishment,and make it more perfect,fair and reasonable. |
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