In this regard, a large number of scholars and lawyers have made various interpretations in various media, and the conclusions are generally "the result conforms to the law", "the principle of adapting crime and punishment" and "the criminal policy of combining leniency with severity". At the same time, tax authorities at all levels have also expressed their views, and the handling of star tax evasion cases reflects the severe punishment of star tax violations. However, this kind of interpretation can't respond to the public's confusion. There is an arrogant subtext behind these "professional interpretations": "You don't know the law, so the punishment for tax evasion of stars is heavy", which even triggered public doubts about the law. Because, although the public is not a "legal expert", it has a simple concept of fairness and justice. In the eyes of the public, tax is the property of the country and the material basis of public expenditure. Illegal possession of state property of hundreds of millions of yuan is only an administrative violation. And this is already a "severe punishment"? So what is the amount of tax evasion to be considered a crime? Billions? Tens of billions?
Faced with these "legal puzzles" or even "legal doubts" of the public, it is obviously not enough to rely solely on legal professionals to explain the law themselves. This paper will do some simple analysis from the legislative evolution of tax crimes in China and the idea behind the law, and explore the root cause of the huge gap between legal recognition and public recognition.
First, from the crime of tax evasion to the crime of tax evasion caused by the revision of special exemption clauses.
First of all, answer the public's questions. If the tax evasion of stars reaches billions or tens of billions, can it be considered a crime? It's a pity to disappoint the public again. According to the existing criminal law, still can't. Because the key to decide that star tax evasion does not constitute a crime is not the amount of tax evasion, but the exemption clause of tax evasion crime set by the criminal law amendment.
In fact, the public is no stranger to star tax-related cases. In 2002, the case of movie star Liu's tax evasion of more than 6 million yuan entered the criminal proceedings according to Article 20 1 of the Criminal Law at that time. Although after 422 days of criminal detention and 9 months of bail pending trial, the procuratorate made a decision not to sue Liu. However, this does not mean that Liu evaded taxes14.583 million yuan was not guilty, but that Liu evaded taxes and belonged to a culture and art limited liability company in Beijing, so Jing, the then general manager of the company, was sentenced to three years in prison. Therefore, in the eyes of the public, the relevant companies have at least entered the criminal proceedings, and the judicial organs have made it clear that tax evasion with a huge amount is a criminal act, which not only conforms to the cognition of the majority of the public, but also satisfies the public's simple view of justice. Then why is it that the same amount of tax evasion by stars is larger now and the evidence is conclusive? Why is it a crime instead?
Because the crime of tax evasion is stipulated in Article 20 1997 of the Criminal Law, the standard for the establishment of the crime of intentional tax evasion is to achieve the model of "specific amount+specific proportion". As long as the amount of tax evasion of taxpayers or natural person taxpayers reaches more than 1000 yuan and accounts for 10% of the taxable amount, a crime can be established. Therefore, Beijing Xiaoqing Culture and Art Co., Ltd. established the crime of tax evasion. In 2009, the Eighth Amendment of the Criminal Law greatly amended the crime of tax evasion in Article 20 1 of the original Criminal Law. The standard of the crime of intentional tax evasion is to achieve the model of "large amount+specific proportion" Taxpayers or natural taxpayers who evade taxes in a large amount, accounting for 10% of the tax payable, can be convicted, and the charge is changed from tax evasion to tax evasion. However, the subsequent judicial interpretation changed the crime of tax evasion to a large amount. However, this revision not only improves the standard of conviction amount, but also adds specific exemption clauses, stipulating that taxpayers who evade taxes will not be investigated for criminal responsibility as long as they "pay the tax payable and late fees after the tax authorities issue a notice of recovery according to law; However, unless you have received criminal punishment for tax evasion within five years or have been given administrative punishment by the tax authorities for more than two times. "
That is to say, no matter how big or high the tax evasion is, it can not be treated as a crime only if the tax authorities issue a notice of recovery and pay back the tax and are subject to administrative punishment. Therefore, in the recent tax evasion case, because it is the first time that a star has been punished for tax evasion, he can naturally be exempted from criminal responsibility.
Second, the rationality of the special exemption clause in the current crime of tax evasion.
Why do you want to set such an exemption clause? At that time, scholars involved in legislation made an interpretation, mainly considering two factors: first, "the amount standard of tax evasion crime is too low, and the scope of attack is too wide, which is not conducive to economic development and the consolidation of national tax sources;" Too many cases transferred to the public security are unbearable; If the tax authorities do not hand over the case, the procuratorial organs may investigate the criminal responsibility for the crime of not handing over the criminal case for favoritism. In fact, all localities basically do not strictly follow this standard, making this regulation ineffective. " ; Second, "the current provisions on the crime of tax evasion have great negative effects. If an enterprise evades taxes to a certain amount and proportion, regardless of whether the enterprise voluntarily pays taxes and late fees and accepts fines, it can convict the business owner. As a result, enterprises may slowly close down and the state tax revenue will be less. Enterprises go bankrupt, and laid-off workers need to be resettled, which has added new burdens to the state and the government. " However, the above reasons cannot fully explain the rationality of adding tax evasion exemption clause in criminal law. The first reason is that if the original amount standard is too low and the scope of attack is too wide, the amount standard can be raised, and there is no need to set an exemption clause at all; As for the second reason, let's not talk about the legitimacy of the concept of "it is not appropriate to convict the boss of tax evasion enterprises". Even considering enterprise development and employment placement, not all taxpayers are business owners who employ a large number of employees, and at least a large number of high-income individuals engaged in entertainment and sports industries obviously do not belong.
Therefore, there are two views to support the rationality of the special exemption clause in the crime of tax evasion:
First, it is considered that tax evasion itself is not harmful, and the exemption clause is set up to reduce the interference of criminal law in general illegal acts. Some scholars put forward that "it is a legal system that has to be implemented and is beneficial to the people to set a threshold for preventing a large number of tax evasion and abuse of criminal law." Many people don't realize that this kind of legislation is advanced and humane. " However, this paper holds that it is difficult to justify the assertion that tax evasion is harmless in itself in the criminal law system. On the one hand, the maximum legal penalty for tax evasion can reach 7 years imprisonment, which can no longer belong to the category of misdemeanor; On the other hand, China's criminal policy on tax-related crimes is generally strict, and the penalties for tax evasion, tax fraud and invoice crimes are more severe. There was a death penalty clause for the crime of special invoices for value-added tax, which was not amended until 20 1 1, and there was no exemption clause for these crimes. But "the law does not blame the public" is a false proposition, because there are many acts of tax evasion in reality. There is no universal phenomenon and criminal law cannot punish it. For example, telecom fraud is also common. Can decriminalization be achieved through legislation? "The law does not blame the public" can only be established if a common phenomenon is less harmful, in other words, it is not the cause but the result. In my opinion, tax is money receivable by the state, and it is an infringement of state property rights and a disruption of tax administration order to secretly take possession of the property that should be turned over to the state treasury by illegal means. When the amount of tax evasion is large, it obviously has serious social harm.
Secondly, it is considered that the special exemption clause in the crime of tax evasion is reasonable. Some scholars put forward that the conditional decriminalization of the crime of tax evasion in criminal law is based on the fact that the main purpose of cracking down on the crime of tax evasion is to maintain the order of tax collection and management and ensure the national tax revenue. For first-time offenders, if they pay taxes and late fees after being pointed out by the tax authorities and fulfill their tax obligations and accept administrative punishment, they can no longer be investigated for criminal responsibility as crimes, which can better reflect the criminal policy of combining leniency with severity. " This paper holds that the so-called criminal immunity for first-time offenders does have theoretical and practical recognition that first-time offenders can be given a lighter criminal responsibility evaluation, but the exemption clause in the current crime of tax evasion does not conform to the concept of lighter punishment for first-time offenders in criminal law. First, the exemption for first-time offenders can only be applied when the circumstances of the crime are minor and combined with other subjective and objective circumstances, and the harm of the perpetrator is obviously minor and the subjective malignancy is not great. Second, more importantly, the tax evasion exemption clause refers to "the first punishment", not "the first tax evasion". First offense refers to the perpetrator's first crime, so it is often sporadic and special, while first offense and first offense are two different concepts. For example, a recidivist who has committed dozens of theft crimes in a few years, after being finally caught, can never constitute tax evasion for several years like a first-time offender, which is obviously not an accidental personal behavior. So is the so-called "first offense exemption clause".
Therefore, from the perspective of rationality, the rationality of the exemption clause of tax evasion crime in the current criminal law is not fully supported in theory, and its effect in practice is even more doubtful. The existence of the exemption clause makes the administrative punishment for tax evasion by taxpayers a precondition for criminal investigation, which has caused two kinds of adverse consequences: on the one hand, there is no hiding place for a large number of tax evasion, because no matter how big the tax evasion amount is, as long as it is found and accepted administrative punishment, there is no need to worry about taking criminal responsibility, which objectively condones tax evasion and even forms the wrong cognition that tax evasion is "state acquiescence"; On the other hand, tax authorities have not only administrative power, but also criminal power. As long as taxpayers are not subject to administrative punishment, even if they evade administrative punishment by bribing tax officials and other illegal means, they can be exempted from criminal punishment. Therefore, some taxpayers and some tax officials use the existence of tax exemption clauses to evade taxes, forming the same subject of illegal interests, and at the same time, the national tax revenue is greatly damaged. Therefore, this paper holds that the existing exemption clause of tax evasion crime is unreasonable and there is great institutional risk.
Third, the legal attitude towards the special exemption clause of tax evasion crime.
After clarifying the legal evolution from the crime of tax evasion to the crime of tax evasion in China's criminal law, as well as the dispute over the special exemption clauses in the crime of tax evasion, we can draw the conclusion that the crime of tax evasion by stars still has serious social harm and has reached the level of criminalization, and should be punished through criminal law. Therefore, the public's dissatisfaction and query is not the expression of "legal ignorance", but the proper law of criminal law. From the formal elements of the crime, the star's tax evasion behavior meets the applicable conditions of the special exemption clause in the current tax evasion crime. After accepting the administrative punishment, according to the principle of legally prescribed punishment for a crime, the criminal responsibility can no longer be investigated.
Therefore, after uncovering the legal fog behind the star tax evasion case, we can find that this is just another typical conflict between "substantive justice" and "formal justice" in criminal law. So how should the judiciary choose? This paper holds that we can question the rationality of the effective law, but we can never deny its effectiveness. Therefore, in the case of star tax evasion, acquittal is the right choice and the inevitable choice to safeguard legal dignity. Moreover, in the case that there is a special exemption clause for tax evasion in criminal law, the possibility that high-income groups such as movie stars will be investigated for tax evasion is extremely low, because it is difficult to trigger the invalid condition of the exemption clause of "being punished twice in five years" in practice. Of course, tax evasion is often a collection of a series of complex illegal acts. In addition to the crime of tax evasion, other charges can be established for tax evasion. For example, for tax evasion, the crime of concealing or destroying accounting vouchers, accounting books and financial accounting reports can be established, and for tax evasion, the crime of falsely reporting registered capital, the crime of falsely contributing capital, the crime of evading capital contribution and the crime of falsely issuing VAT invoices can be established. This kind of behavior is often employed or entrusted by taxpayers who evade taxes, and taxpayers who participate in the above-mentioned illegal and criminal acts may be directly responsible for the crime in the form of * * * accomplice or unit crime, and bear criminal responsibility in the form of * * * accomplice or unit crime.
At present, the existence of special exemption clauses for tax evasion makes the criminal evaluation of tax evasion with serious social harm seriously insufficient or even blank. In the face of the substantial justice loss caused by the exemption clause and the public's general doubts, we should further reflect on and actively promote the revision of the existing exemption clause, which can be applied when the amount of tax evasion is small and the proportion is low, but it should be prohibited for the large amount and the high proportion. So as to meet the internal needs of the criminal law system, realize the criminal law protection of national tax property and tax management order, and let the public feel fairness and justice in every criminal legislation and judicial activity.
Conclusion: The institutional guarantee of tax management order in China.
refer to
China court network: tax evasion judgment of Beijing Xiaoqing Culture and Art Co., Ltd., https://www.chinacourt.org/article/detail/2004/04/ID/1271.shtml, 2026544.
Huang Taiyun: Interpretation of Criminal Law Amendment (7) (2), People's Court Newspaper, April 2009 15.
Wang Yang, Ma Yuejun and Qing Liu: "Only when the law is clear can we avoid misunderstanding and get support", Legal Daily, 20 18 10.6.
Xiang Li: On the Immunity of the First Offender of Tax Evasion, in Criminal Law of China, No.7, 2009.