中国内地税收执法正当程序研究

发布时间：2019-01-17 14:05

【摘要】：国家的存在和有效运转离不开税收,公民的生存和发展同样离不开税收。税收是否正当、是否合理、是否科学一方面决定国家能否及时有效的实现国家收入,另一方面决定着公民能否在缴纳税收后依然可以很好的实现个人的自由发展。随着社会法治的深入发展,现代法治国家需要正确处理好国家收入与公民财产之间的关系,这就要求国家正当行使税收执法权,保证国家在税收执法上的正当性。正所谓良法是法治的基本前提,但是如何行之有效的贯彻良法才是关键所在,在法治高度发展的国家往往通过正当法律程序来严格规范法律的运行过程,正当法律程序成为国家各级行政机关、全体公民共同贯彻法律、执行法律、监督法律不可或缺的平台。因此,我国的税收执法也应当遵循正当程序,通过正当程序去构建科学民主正当的税收征管体系,规范税收的执法过程,限制国家税收征管机关及其工作人员税收执法权的不正当行使,保障公民合法的税收权益。我国内地税收征管机关一直以来将完成国家税收任务作为税收征管工作的核心,为了提高税收执法效率,实现国家税收,他们在税收执法的过程中往往更多关注实体的合法性,忽略了程序的正当性。我国内地的许多纳税人只知道有依法纳税的义务,完全不知道其在纳税的过程中应当享有的实体及程序权利。本文正是基于正当法律程序这一角度进行论述,从税收执法正当程序的基本理论入手,在借鉴国外税收执法正当程序的基础上,针对我国内地税收执法程序存在的问题,提出构建我国内地税收执法正当程序的对策。本文的内容组成如下:第一部分,阐述税收执法正当程序的基本理论以及意义,首先从税收的定义、税收执法行为的界定、正当程序的定义着手,引出税收执法正当程序的定义及基本要求,其次分析了美国、加拿大这两个国家在税收征管中实现税收执法程序当化的具体方法,最后说明税收执法程序正当化的意义。第二部分,分析目前国内税收执法程序在税收执法决策阶段、具体实施阶段、反馈阶段分别存在的问题,这些问题主要包括:税收执法文件制定不严谨以及税收执法自由裁量权被滥用;税收执法实施程序不完善,税收执法人员程序意识薄弱;纳税人缺少程序异议权、税收执法程序缺乏有效的监督机制。第三部分,提出推动国内税收执法程序正当化的对策。针对三个税收执法阶段中存在的问题,提出如下对策:在税收执法决策阶段分别构建严格的税收执法文件制定程序与税收执法决策集体决定程序,在税收执法具体实施阶段应当构建统一完备的税收执法程序规则与税收执法信息公开机制,在税收执法反馈阶段应当构建税收执法正当程序听证制度与税收执法评估系统。
[Abstract]:The existence and effective operation of the country can not be separated from taxation, and the survival and development of citizens can not be separated from taxation. On the one hand, it determines whether the country can realize the national income in a timely and effective manner, on the other hand, it determines whether the citizen can still realize the individual's free development after paying the tax. With the further development of the social rule of law, the modern country under the rule of law needs to correctly handle the relationship between the national income and the citizen's property, which requires the state to exercise the right of enforcing the tax law properly and to ensure the legitimacy of the state in the law enforcement of tax. The so-called good law is the basic premise of the rule of law, but how to effectively carry out the good law is the key. In the countries where the rule of law is highly developed, the operation of the law is often strictly regulated through due process of law. Due process of law has become an indispensable platform for the state administrative organs at all levels, all citizens to implement the law, enforce the law, and supervise the law. Therefore, China's tax law enforcement should also follow due process, through due process to build a scientific, democratic and proper tax collection and management system, and standardize the tax enforcement process. To restrict the improper exercise of the tax enforcement power of the state tax collection and administration organs and their staff, and to protect the lawful tax rights and interests of citizens. Tax collection and administration authorities in mainland China have all along regarded the completion of the state tax task as the core of tax collection and management work. In order to improve the efficiency of tax enforcement and realize state tax, they often pay more attention to the legitimacy of entities in the process of tax enforcement. The legitimacy of the program is ignored. Many taxpayers in the mainland of China only know that they have the obligation to pay taxes according to law and have no idea of the substantive and procedural rights they should enjoy in the process of paying taxes. This article is based on the point of view of due process of law, starting from the basic theory of tax enforcement due process, on the basis of drawing lessons from foreign tax enforcement due process, aiming at the existing problems of tax enforcement procedure in mainland China. This paper puts forward the countermeasures to construct the due process of tax law enforcement in mainland China. The content of this paper is as follows: the first part describes the basic theory and significance of tax enforcement due process. First, it begins with the definition of tax, the definition of tax enforcement, the definition of due process. This paper introduces the definition and basic requirements of the due process of tax enforcement, and then analyzes the concrete methods of realizing the proper procedure of tax enforcement in the tax collection and administration of the United States and Canada, and finally explains the significance of the legitimacy of the tax enforcement procedure. The second part analyzes the problems existing in the current domestic tax enforcement procedures in the tax enforcement decision-making stage, the specific implementation stage, the feedback stage, respectively. These problems mainly include: the tax enforcement documents are not strict and the discretion of tax enforcement is abused; The implementation procedure of tax enforcement is not perfect, the consciousness of tax enforcement personnel is weak, the taxpayer lacks the procedural objection right, and the tax enforcement procedure lacks an effective supervision mechanism. The third part puts forward the countermeasures to promote the legitimacy of domestic tax enforcement procedure. Aiming at the problems existing in the three stages of tax enforcement, the following countermeasures are put forward: the strict tax enforcement document making procedure and the collective decision procedure of tax enforcement decision-making are respectively constructed in the tax enforcement decision-making stage. In the specific implementation stage of tax enforcement, a unified and complete mechanism of tax enforcement procedure rules and tax enforcement information disclosure should be constructed, and a hearing system of due process of tax enforcement and a tax law enforcement evaluation system should be constructed in the feedback stage of tax enforcement.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.22

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