税务行政诉讼中的证明标准适用问题研究

发布时间：2018-04-29 02:21

本文选题：税收争议 + 税务行政诉讼　；参考：《湘潭大学》2017年硕士论文

【摘要】：随着我国税收争议解决机制重心开始逐渐移转,税务司法专门化的趋势日益加强,涉税争讼在数量上逐年增加,争议焦点的内容也开始呈现多元化、精细化的发展态势,实践中围绕税务行政诉讼证明规则而引发的争议不断,因事实不清、证据不足而导致税务机关败诉的案件量骤然上涨。尤其是,伴随着庭审实质化改革的不断推进,诉讼证据证明问题的重要性越发凸显。诉讼之关键在于证据,证据制度之核心则是在于证明标准。税务行政诉讼作为特殊的一类行政诉讼,其证明标准适用一般行政诉讼证明标准即可。然而,现行法律不仅没有对一般行政诉讼证明标准的适用作出详尽规定,也没有兼顾到税收争议案件的特殊性,因而直接导致税务行政诉讼中的证明标准适用亦不规范。从法律文本层面来看,我国现行法律体系中关于税务行政诉讼中证明标准适用的规范力度明显不足,呈现出立法条文数量特别少,条文的内容单一且操作性较低,法律效力层级不高等特征。从税法实践层面来看,由于税收事实的认定具有专业性和复杂性、税务行政执法过程中存在“轻程序”的思维、税务行政诉讼中缺乏专门的证明标准适用规则,导致税务行政诉讼中的证明标准与涉税刑事诉讼证明标准的界限不明、税务行政诉讼与税收行政执法中适用的证明标准不协调、税收证据证明力优势与证据数量优势相混同之类的问题尤为突出,已然严重阻碍了我国税收法治的进程,使得税务行政执法风险增加、税收争议得不到有效解决以及税收司法公正性减弱。为完善我国税收司法制度,切实保护纳税人基本权利,解决税收行政争议,降低税务行政执法风险,一方面,理应从涉税争议事实证明的阶段性、涉税争议案件诉讼证明的难易程度、税务行政诉讼举证责任的分配情况以及国家财政利益和纳税人权益的衡量等四个方面明确税务行政诉讼中适用证明标准时应考量的因素。另一方面,从实际操作层面规范税务行政诉讼中证明标准的适用。具体而言,税务行政诉讼中证明标准的适用必须依据不同类型的税收行政争议事实而适用不同层级的证明标准,即根据税务行政处罚、税收行政强制以及税务行政处理等三种情形,将清晰而有说服力证明标准细分为三级具体标准,并为其设定相应的判断条件。与此同时,还应构建有序的税务行政诉讼三级标准适用规则,建立严格的税务行政诉讼证据审查制度,设置完整的税务行政诉讼裁判说理制度。
[Abstract]:With the gradual transfer of the focus of the tax dispute settlement mechanism in our country, the trend of tax judicial specialization is increasingly strengthened, the number of tax disputes increases year by year, and the content of the dispute focus begins to present a diversified and refined development trend. In practice, the dispute caused by the rules of proof of tax administrative litigation is incessant, because of the unclear facts and insufficient evidence, the number of cases that the tax authorities lose the case increases suddenly. Especially, along with the reform of the trial materialization, the importance of the proof of litigation evidence becomes more and more prominent. The key of litigation is evidence, and the core of evidence system is proof standard. As a special kind of administrative litigation, the proof standard of tax administrative litigation can be applied to general administrative litigation. However, the current law has not only failed to make detailed provisions on the application of the standard of proof in general administrative litigation, but also failed to take into account the particularity of tax dispute cases, thus directly leading to the application of the standard of proof in tax administrative litigation is also not standardized. From the point of view of legal text, the standard of proof in tax administrative litigation is obviously inadequate in the current legal system of our country, showing that the number of legislative provisions is especially small, the content of the provisions is single and the operation is low. The level of legal effect is not high. From the perspective of tax law practice, due to the specialty and complexity of the identification of tax facts, the thinking of "light procedure" exists in the process of tax administrative law enforcement, and the lack of special rules for the application of certification standards in tax administrative litigation. As a result, the boundary between the standard of proof in tax administrative litigation and the standard of proof in criminal litigation concerning tax is not clear, and the standard of proof applied in tax administrative litigation and administrative law enforcement of tax is not in harmony, The problems such as the combination of the advantages of proof power of tax evidence and the advantage of quantity of evidence are particularly prominent, which have seriously hindered the process of tax rule of law in our country and increased the risk of tax administrative law enforcement. Tax disputes can not be effectively resolved and tax justice is weakened. In order to perfect our country's taxation judicial system, protect taxpayers' basic rights, resolve tax administrative disputes, and reduce the risks of tax administrative law enforcement, on the one hand, it should be proved by the stages of the facts concerning tax disputes. The degree of difficulty of proof in tax dispute cases, the distribution of burden of proof in tax administrative litigation, and the measurement of national financial interests and taxpayers' rights and interests are four aspects to make clear the factors that should be taken into account when applying the standard of proof in tax administrative litigation. On the other hand, standardize the application of proof standard in tax administrative litigation from the practical operation level. In particular, the application of certification standards in tax administrative litigation must be based on different types of tax administrative dispute facts and apply different levels of certification standards, that is, according to tax administrative punishment, In the three situations of tax administrative compulsion and tax administrative treatment, the clear and persuasive standard of proof is subdivided into three levels of concrete standards, and the corresponding judgment conditions are set for them. At the same time, we should also set up an orderly three-level standard applicable rules of tax administrative litigation, establish a strict tax administrative litigation evidence review system, and set up a complete tax administrative litigation judgment reasoning system.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3

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