税法合同初论

发布时间：2018-12-27 09:05

【摘要】： 税法合同不仅是现代法学整体变化大背景下的产物,而且也是税法学和税务实践发展的客观需要,它在节约稽征成本、防止非法避税、便利税务征收等许多方面都具有一些传统稽征方式所不具备的优势,有着重要的作用。本文以税收法律关系的“债权债务关系说”理论为基础,在充分比较和借鉴行政合同及民商事合同研究成果的基础上,引入了“税法合同”这一新概念,首先探究了税法合同产生的原因并对其进行了概括式定义,然后紧紧围绕定义从特征、界定、分类及体系等多个角度对其予以深层次剖析。最后为税法合同作了一个简单的制度设计。力图不仅从实证上而且从理论上为税法合同的存在寻找到确切的证据,并依据定义勾勒出税法合同理论的大致框架。通过上述努力,笔者得出的结论是:税法合同的产生具有诸多深层次原因,其含义可概括为:“为实现一定的税务行政管理目的以及便利税收债权债务的确定与实现,税法主体相互之间或与相关主体之间依法经意思表示一致而缔结的,以税收债权债务为内容的,设立、变更、中止税收债权债务权利义务关系的协议”。它具有税收行政性、合同性及目的性三个基本特征,根据合同的主体、内容及目的这三条判断标准,它可以被分为“税法主体相互之间缔结的税法合同”和“税法主体与相关第三人间缔结合同”两大类,形成一个完整的体系。对税法合同的制度设计要将制度设计理念与具体制度设计相结合。本文的创新主要体现在二个方面:第一,在理论方面,目前税法学界对税法合同的研究几近一片空白,笔者创造性提出“税法合同”这一新概念,并对其内容及表现形式作了初次归纳与体系化,进行了大胆的理论探索;第二,在研究方法方面,涉及税法合同理论时,从税法中“跳出来”广泛联系民商法、行政法、甚至刑法和法理等学科的理论成果,在阐述具体税法合同类型时则尽量“钻进去”,追求各制度间的细微联系与区别,同时注意理论与具体制度的紧密结合。此外,本文中有关私法向公法渗透的表现、税法合同与税收法定主义的关系以及税法合同的救济等内容都具有一定的新意。
[Abstract]:The contract of tax law is not only the product of the overall change of modern law, but also the objective need of the development of tax science and tax practice. It saves the collection cost and prevents illegal tax avoidance. Many aspects, such as convenient tax collection, have some advantages that the traditional tax collection methods do not have, and play an important role. Based on the theory of "creditor's rights and debt relationship" in tax law, this paper introduces the new concept of "tax law contract" on the basis of fully comparing and referring to the research results of administrative contract and civil and commercial contract. This paper probes into the causes of the contract of tax law and defines it in a general way, and then analyzes it deeply from the aspects of characteristics, definition, classification and system. Finally, a simple system design for the tax law contract is made. This paper tries to find the exact evidence for the existence of the tax law contract not only empirically but also theoretically, and outlines the general framework of the tax law contract theory according to the definition. Through the above efforts, the author comes to the conclusion that there are many deep reasons for the production of the tax law contract, and its meaning can be summarized as follows: "in order to realize the purpose of tax administration and to facilitate the determination and realization of tax creditor's rights and liabilities," An agreement concluded between the subjects of tax law or between them according to law and in accordance with the meaning of tax claims and debts, which includes tax claims and debts, establishes, changes and suspends the relationship between the rights and obligations of tax claims and debts. " It has three basic characteristics of tax administration, contract and purpose. According to the three criteria of the subject, content and purpose of the contract, It can be divided into two categories: "the contract of tax law concluded between the subjects of the tax law" and "the contract concluded between the subject of the tax law and the third party concerned", forming a complete system. The system design of the tax law contract should combine the system design idea with the concrete system design. The innovation of this paper is mainly reflected in two aspects: first, in theory, the research on the tax law contract is almost blank in the field of tax law, and the author creatively puts forward the new concept of "tax law contract". At the same time, it has made the initial induction and systematization to its content and the manifestation form, has carried on the bold theory exploration; Second, in terms of research methods, when it comes to the contractual theory of the tax law, it "jumps out" from the tax law and links widely with the theoretical achievements of subjects such as civil and commercial law, administrative law, and even criminal law and jurisprudence. In expounding the contract types of the specific tax law, we should try our best to "step in", pursue the subtle connection and difference between the systems, and pay attention to the close combination of the theory and the concrete system at the same time. In addition, the expression of the penetration of private law into public law, the relationship between tax law contract and tax legalism, and the relief of tax law contract have some new ideas.
【学位授予单位】：厦门大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D912.2

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