税收行政执法中的自由裁量权研究

发布时间：2018-05-30 03:23

本文选题：依法治税 + 自由裁量权　；参考：《安徽财经大学》2015年硕士论文

【摘要】：十八届四中全会再次提出“依法治国”理念,总目标是建设中国特色社会主义法治体系,建设社会主义法治国家。在法律层面上,中国属于法制化国家,无论在哪个层面、哪条路线上,都要做到有法可依、有法必依、执法必严、违法必究。但随着经济的飞速发展,社会关系变得越来越复杂,规则的法律控制已经不适应中国的基本国情,即使法律法规在不断地调整,但是由于立法技术的弊端,法律“滞后性”特征显得突兀,法律控制始终跟不上社会的发展节奏。税收作为国家财政收入的主要来源,在社会经济中扮演中重要的角色,国家在各个方面也都有力的推动依法治税,税收相关法律也变得纷繁复杂,在这样的境况中,税收执法自由裁量权显得格外重要。《税收征管法征求意见稿》立足于“依法治国”方略,促进税收法制化,税收相关法律法规也赋予税务机关更多的自由裁量权,税务机关在税收征管过程中的灵活性变得更大,有效的提高了税收执法效率。但是税收执法自由裁量权是把“双刃剑”,其存在是有法律依据也是必要的,但在它带来积极影响的同时,它所带来的破坏性的负面影响也日渐突出。基于人是理性的“经纪人”假设,税收执法自由裁量权最终掌握在执法者个人手中,权利赋予的弹性决定权埋没了法律所要求的一位合格的执法者的所本该有的理性,使他们将所拥有的权利转化为谋求私利的工具,剥夺国家利益、相对人及其他利害相关人利益,破坏税务机关等公共形象和法律的权威性,给社会带来极大的负面影响。当然,产生不恰当使用税收执法自由裁量权问题的原因不仅仅是人这一主观因素,还有很多客观因素,他们共同成为不恰当使用税收执法自由裁量权的原因体系。笔者在文章中将不恰当使用税收执法自由裁量权利的形式总结为三点,主要表现为:行使权力的目的和动机不当(事前)、程序不透明(事中)、结果显失公正(事后)。研究出如何对税收执法自由裁量权加以有效的控制已是当务之急。随着税收执法自由裁量权的使用的频率日渐升高,也日渐引起国内外许多学者的关注,他们开始研究税收执法自由裁量权的问题,试图探索出一个控制税收执法自由裁量权的有效办法。本文以现代行政自由裁量权的理论为切入口,对社会上出现的典型的行使税收执法自由裁量权的案例进行分析其发生的原因和给社会带来的负面影响,并总结出控制税收执法自由裁量权使用的关键要素,并将理论结合实际,建立起一套包含四个模式的控制体系,以求能对控制税收执法自由裁量权的使用做出一点贡献,为推动税收法制化建设尽微薄之力。
[Abstract]:The fourth Plenary session of the 18th CPC Central Committee once again put forward the idea of "governing the country according to law", with the overall goal of building a socialist legal system with Chinese characteristics and building a socialist country ruled by law. On the legal level, China is a legalized country, no matter which level, which line, must have the law to abide by, must abide by the law, enforce the law strictly, must investigate the violation of the law. However, with the rapid development of economy, social relations become more and more complicated, and the legal control of rules has not adapted to the basic conditions of China, even though laws and regulations are constantly adjusted, but due to the shortcomings of legislative technology, The characteristic of lag in law is sudden, and legal control can't keep up with the pace of social development. As the main source of national financial revenue, tax plays an important role in the social economy. The state has also been able to promote the administration of taxes according to law in all aspects, and the relevant laws on taxation have become complicated, in such a situation, The draft of soliciting opinions on tax Collection and Administration Law is based on the general strategy of "governing the country according to law" to promote the legalization of taxation, and tax related laws and regulations also give tax authorities more discretion. The flexibility of tax authorities in the process of tax collection and administration has become greater, effectively improving the efficiency of tax enforcement. However, the discretion of tax enforcement is a "double-edged sword", which has legal basis and is necessary. Based on the assumption that man is a rational "broker", the discretionary power of tax enforcement is ultimately in the hands of the individual law enforcer, and the flexible decision given by the right undercuts the rationality that a qualified law enforcer is supposed to have, as the law requires. So that they can turn their rights into tools for seeking personal interests, deprive the national interests, the interests of relative persons and other stakeholders, destroy the public image of tax authorities and the authority of the law, and bring great negative impact to the society. Of course, the problem of improper use of tax enforcement discretion is caused not only by the subjective factor, but also by many objective factors, which together become the reason system of improper use of tax enforcement discretion. In this paper, the author summarizes the improper use of the discretionary power of tax enforcement into three aspects: the purpose and motive of exercising the power is improper (prior, the procedure is not transparent, the result is not fair after the incident). It is urgent to study how to effectively control the discretion of tax enforcement. With the increasing frequency of the use of the discretion of tax enforcement, many scholars at home and abroad pay more and more attention to it, and they begin to study the issue of the discretion of tax enforcement. This paper attempts to explore an effective method to control the discretion of tax enforcement. Taking the theory of modern administrative discretion as the entry point, this paper analyzes the causes and negative effects of the typical cases of exercising the discretion of tax enforcement in the society. And summarizes the key elements to control the use of tax enforcement discretion, and combines theory with practice, establishes a set of four models of control system, in order to control the use of tax enforcement discretion to make a little contribution. In order to promote the construction of tax legislation to do a meagre.
【学位授予单位】：安徽财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.22

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