| With the acceleration of economic integration process of the world and extensive establishment of constitution system, the countries all over the world have realized the importance of taxpayer's right protection, have become a academic focus on the research of taxpayer's right protection, but present research is mostly qualitative research, the quantitative analysis of law and economics on taxpayer's right is relatively weak. Carrying on the analysis of law and economics to taxpayer's right, which is favorable to enrich law and economics theory, can offer the optimum method of taxpayer's right protection in practice. Besides the justice value of the law, the optimum includes the minimum realization cost. Game analysis offers the method of benefit equilibrium for each interest group of the taxpayers and thus optimizes the various interests. Compared with the theory conclusion of the research and the real state of taxpayer's right protection, we can find some questions and discover the beneficial countermeasure on taxpayer's right protection.From global analysis to partial research, from problem analysis to countermeasure research, which is basic logic thinking of the text. The full text divides into 8 chapters. Besides introduction of chapter 1, the thesis can be divided into three parts. The first part includes chapter 2 and chapter 3, which carries on the analysis of law and economics to taxpayer's right protection on the whole. The second part includes chapter 4, chapter 5 and chapter 6, which carries on the analysis of law and economics to taxpayer's right protection from three links of legislation, law enforcement and justice. The third part includes chapter 7 and chapter 8, which introduces partly the international taxpayer's right protection, and put forward the countermeasure of optimizing the taxpayer's right protection in our country. The basic content and structure of the text are arranged as follows:Chapter 1 as introduction includes the definition of relevant concept and research scope, literature review, research subject, research thinking and method and logical structure arrangement etc.Chapter 2 is the ontology of taxpayer's right. Before we carry on the analysis of the taxpayer's right protection, we should have an overall understanding and analysis on taxpayer's right primarily. That is to say, what is the right, what is the relation between general human rights and taxpayer's right, what is taxpayer's right, the origin of taxpayer's right, the law essence and characteristics of taxpayer's right etc. All these are the foundation and target analyzed on taxpayer's right protection, we can carry on static and dynamic analysis to the taxpayer's right protection on this basis only. The main content and view of the chapter are:(1) The essence of human rights. Human rights are restricted by the specific history and culture condition. Fundamental human rights supported by moral and law is used in the meaning of morals, law and resistance. Human rights is a right source of taxpayer's right, the protection condition of human rights influences the protection condition of taxpayer's right directly, the condition of taxpayer's right protection is interactive with the protection of human rights.(2) The influencing factors of the condition of taxpayer's right protection. The social civilization determines the condition of taxpayer's right protection; the taxpayer's right is the product of the specific civilization, influenced by some factors such as history, law, politics, custom etc. The western constitution system promotes the protection of taxpayer's right. Taxpayer's right protection presents the international trend, no matter how Chinese and Western taxpayer's right situation develop, the taxpayer's right is being paid attention in globalization age increasingly.(3) Relation between right, human rights and taxpayer's right. The right is the domination free that the subject enjoys, the subject includes country and citizen. Common right and private right form the right together. The content of human rights includes some contents of the common right and private right. According to the definition of human rights, citizen's personal rights belong to private right, some national rights including the national self-determination right belong to the common right. Taxpayer's right is an important content of the human rights, it is a right that taxpayer enjoys, so it is the private right too.(4) The theoretical foundation that taxpayer's right exists. The improvement of taxpayer's welfare requires the improvement of social production efficiency, the improvement of social production efficiency must rely on the effective disposition of the property right of social resources. The country and government decide the disposition of the property right, whether the country and government is incorruptible decide the validity of the disposition of the property right, thus the taxpayer needs to choose public organizations such as the country and government, the public organization which the taxpayer chose posses the real legitimacy and rationality. The just public organization offers public products such as law, law to the rational disposition of the resource promotes optimal allocation of the property right reversely, the social welfare get improvement further.Chapter 3 is the operation mechanism of taxpayer's right protection. Only when we have basic understanding on taxpayer's right noumenon can we use the legal and economic method to analyze the protection of taxpayer's right. The law analytical method is static, the economic analytical method is dynamic, they complement and manifest the advantage each other, comprehensively contain the protection of taxpayer's right. After the protection of the taxpayer's right is generally analyzed, the concrete taxpayer's right protection can be discussed at three links of legislation, Law enforcement and justice. The main contents and view of the chapter are:(1) The taxpayer's right protection as public goods. The enjoyment of the taxpayer's rights is based on taxpayer oneself as the starting point. The protection of taxpayer's right is based on the supply and maintenance organization of right protection as starting point, namely country, government and levy organ. At the legislation and law enforcement stage, each taxpayer has the right to participate in legislating equally and exercise taxation consent right through one's own representatives etc. When the taxpayer enjoys the taxpayer's right in the form of legislation, every taxpayer can receive legal protection equally. From this perspective, country is unconditional to the supply and maintenance of taxpayer's right.(2) The reason on taxpayer's right protection. The reason of taxpayer's right protection includes economic reason, civil order reason and institution reason. The institution reason on taxpayer's right protection refers to the course in which taxpayer's right get confirmation and protection under the promotion of taxpayer's right protection institution. Taxpayer's right protection institution can be divided into the inherent taxpayer's right protection institution and external taxpayer's right protection institution. The civil order is an organic system formed by a series of institutions, every institution which makes up of this system influences each other and forms a dynamic system. The taxpayer's right protection as institution and civil order grows up in the institution oneself and gets evolvement among them.(3) The optimization of the taxpayer's right protection. The optimization goal of taxpayer's right protection include sufficient autonomy of will, all kinds of rights, full protection in each link and minimum social cost. About the optimal realization route, the text discusses two kind situations as follows respectively. One is the coexistence of private products and taxpayer's right protection, the other is the coexistence of public products and taxpayer's right protection.(4) The equilibrium goal of game analysis of the taxpayer's right. The analysis of game behavior and rule of taxpayer interest group in the course of taxpayer's right protection is to deduce game equilibrium and solve practical problems, which can provide basis for rational decision of all parties or the establishment of the policy and rule of taxpayer's right protection. The behavior equilibrium analysis is more comprehensive and in-depth than the equilibrium price analysis.Chapter 4 is the economic analysis of taxpayer's right protection from legislative visual angle. The logic starting point of taxpayer's right protection lies in the right protection at legislation stage, the stage of law enforcement and justice would lack right basis if the taxpayer's right at legislation stage lacks basic definition. The concrete regulation and project of taxpayer's right each country is different to some extent, generally speaking, it is more and more exhaustive and complete than before. The economics and game analysis to taxpayer's right protection helps us to optimize the taxpayer's right protection at legislation stage. The main contents and view of the text are:(1) The theory explanation of property right about the levy consent right. When the transaction cost about the levy consent right is too big, it should be disposed to the people who cherish its value mostly. This is the explanation of Posner Theorem about the levy consent right. This is a right which can decide property decidability; it is called the levy consent right in one party of the taxpayer and the levy right in the national party. The persons who levy taxes hope to obtain it because their life and enjoyment depend on the right of taxation, at the same time, taxpayers more prize the levy consent right because their existence and hope also depend on it. Hence, the passive and hard taxpayers more prize the levy consent right. In this sense, the levy consent right should be disposed to taxpayers.(2) Marginal cost and marginal benefit analysis of participation right protection on revenue legislation. The protection cost of participation right on revenue legislation is restricted with specific social and economic competence, it is impossible of immoderate input, its income still receives the restraint of the marginal benefit, when marginal cost of participation right protection on revenue legislation is equal to its marginal benefit, the income of participation right protection on revenue legislation can realize the maximization.(3) The game between the taxpayer and country. In the legislative activity, the formulation, modification and abolishing of the revenue law need taxpayer and representative to participate actively, which reflects the requirement and interests of taxpayer fully. This can embody the participation right of tax legislation of the taxpayer. But the taxpayer's interests are always inconsistent with the interests of the national levy organ in short term. The national levy organ with one's own department's interests also hopes one's own power is the bigger, the better. The right of taxpayer and national levy organ is embodied in a revenue law, which is unavoidable to increase with the decrease, conflict each other and game.(4) Enlightenment on the game of interest group. We should pay attention to the protection of taxpayer's whole right and consider the interests of its inside member while protecting taxpayer's right, which could make the feasible system arrangement in this way. The system design of taxpayer right protection need pay attention to the requirement of different interest groups, make system design fair and reasonable and reduce the antithesis and contradiction within taxpayers.Chapter 5 is the economic analysis of taxpayer's right protection from law enforcement visual angle. As to taxpayer, besides the taxpayer's right which produces at legislative stage, it reflects the interrelation between the levy organ and taxpayer to a great extent. This involves taxpayer's right protection at law enforcement link. We can know taxpayer's right protection at law enforcement link accord with not only the interests of the taxpayer, but also the interests of the levy organ through analysis. The main contents and view of the text are:(1) The economic effect of tax planning right protection. The enforcement of tax planning right can promote the realization of social harmonious goal; lighten the inflation; produce the economic effects of enterprises; economize the personal expenditure and reflect the income effect economically.(2) The analysis of the discrimination treatments of the taxpayer. Taxpayer enjoys the taxable rights equally, which is not discriminated against by the state organ. It means no matter how much does taxpayer pay taxes, they should be treated equally. From the point of law, the discrimination treatments have violated the equal treatment right that taxpayer enjoys, which will cause efficiency losses of the taxation considering the analysis of economic meaning.(3) The optimum deterrent level of levy supervisory authority. The exertion of levy supervisory authority of the taxpayer can prevent and reduce the losses which levy organ cause due to illegal law enforcement mainly. On the one hand, this is a kind of behavior of obtaining the income through reducing losses, but on the other hand, the taxpayer demands cost to the supervision of the levy organ due to its illegal law enforcement. If the cost paid is lower than the income obtained because of supervising, then it is efficient. If the cost paid is higher than the income obtained because of supervising, then it is lack of efficiency.(4) The game analysis of the right of accusation and impeachment encountering tax infringement. In the course of revenue law enforcement, the law enforcement agency can cause revenue infringement, but the taxpayer may choose to charge or inform against to protect one's own right. We can see from the game analysis, the law enforcement agency that infringes the taxpayer's right will receive the accusation of taxpayer inevitably, and vice versa. This tells us theoretically the taxpayer's right can't be infringed. Only the levy organ enforces the law according to legal procedure strictly can it fulfill one's own duty well. Enforcing the law by way of breaking the law or infringing will make one's own interests damaged.(5) The game analysis of the commended right received because of legal tax payment. The game analysis tells us, while the law enforcement agency treats the commended right of the taxpayer passively, the taxpayer will pay tax passively too. The taxpayer pays taxes in a passive way, which will cause the decline of tax compliance and further increase the levy cost of the levy organ, thus influence the taxation efficiency of the whole. Hence, the law enforcement agency of revenue should treat the commended right of the taxpayer actively.Chapter 6 is the economic analysis of taxpayer's right protection from justice visual angle. The taxpayer right protection at the legislative stage can make taxpayer's right more complete, the taxpayer right protection at the law enforcement stage makes these complete rights have realistic soil. Of course, the reality means certain conflict possibly exist in the levy organ and taxpayer on the problem of taxpayer's right protection. The judicial way has become the most basic method of solving the conflict, so it is essential to endow and optimize the taxpayer's right protection at justice stage. The main contents and view of the text are:(1) The"cost and income"analysis of the lawsuit of taxpayer's right protection. The taxpayer's lawsuit cost is composed of judgment expenses, other expenses, attorney fee, time cost, spiritual cost while involving in tax administrative litigation. The lawsuit income of taxpayer's right protection is composed of participation, dispassion, prescription and arbitrament.(2) The economic analysis of the right without the burden of proof. In the lawsuit of tax infringement, the levy organ makes use of evidences collection tool that country offers to keep the evidence together while enforcing the law, the cost is much smaller compared with the taxpayer's proof citation. The levy organ put forward evidence in regard to the legitimacy of its administrative behavior, which can economize the cost of proof citation furthest.(3) The game of lawyer's agency service. The conclusion of the game of lawyer's agency service tells us, the party entrusts the lawyer and the lawyer works hard, which will be the optimum interest choice on both sides. In the lawsuit of taxpayer's right protection, the client should entrust lawyer actively, and the lawyer should be diligent in work.(4) The game analysis of the court relief. The two Nash equilibriums exist in the game of the court relief, namely the court relieve if the taxpayer prosecute, and vice versa. And the court relieves when the taxpayer is sued, which is the optimum tactics, this proves the court as the arbitrament organ should relieves taxpayer's right positively, not only the duty of the legal provisions but also court's interests. Therefore, the taxpayer should make use of law to safeguard one's own right actively, the court must administer relief to the taxpayer's right protection actively too.Chapter 7 is the taxpayer's right protection under international vision. The taxpayer's right protection is important sign of the modern civilization, so the society between east and west all pay attention to the protection of taxpayer's right particularly. Because the legal tradition and origin of countries all over the world is different, the concrete legal provisions of the taxpayer's right protection are different too. Compared with Anglo-American law system and continental law system, the taxpayer's right protection is dissimilar owing to the difference of legal basis, trial mode, the judicial procedure to some extent. But seen from the total trend, the two legal systems all enhance the taxpayer's right protection, which have a positive meaning to the foundation of taxpayer's right protection system in china.Chapter 8 is the countermeasure research of optimizing taxpayer's right protection system. The protection of the foreign taxpayer's right has given us a lot of enlightenment. Some countries, especially the western developed country can carry on overall protection to taxpayer's right, the key lies in improving the legal status of taxpayer's right, supporting the taxpayers of different interests to carry on the legal game, optimizing and ensuring taxpayer's right in the form of constitution. In order to establish the overall and everlasting taxpayer's right protection, we should establish and improve the system of relevant laws, agency and judicial protection. Our country should consider the China's actual conditions and take the perfection of constitution and law as turning point at the same time to embark on the foundation of the agency system and lawsuit protection system. This chapter carries on research to the current situation of taxpayer's right protection in china mainly, and puts forward the thinking and countermeasure of optimizing the taxpayer's right protection in china. This main contents and view of the text are:(1) The principles of optimizing the taxpayer's right protection system in china. The principles of optimizing the taxpayer's right protection system include the socialist principle, constitutional principle, legal revenue principle and administrative efficiency principle.(2) The countermeasures of optimizing the taxpayer's right protection system in china. The countermeasures of optimizing the taxpayer's right protection system in china involve in promoting the legislation programming of taxpayer's right protection at legislative stage, increasing the position of taxpayer's right in the constitution, and encouraging taxpayer's participation enthusiasm etc. At the law enforcement stage, we should change the law enforcement idea of levy subject, rigorously enforce the procedure of tax law enforcement, perfect the system of tax information service, strengthen the administrative benefit principle of revenue and set up the taxation service system between the levy organ and social intermediary organization etc. At the justice stage, we should ensure the judicial independence, set up the tax court, set up the taxpayer's public interest litigation system and implement the trial result firmly etc.This text has carried on the following innovative exploration on the basis of inheriting existing research results:1. The integration of research perspectiveThe literature of taxpayer's right protection in the past carries on the research from the aspects of history, the system and law. The text analyses taxpayer's right merging the law and economics with the unique visual angle, pay attention to the"cost and income"relation and the game relation of relevant subjects on taxpayer's right ensuring, which can announce the dynamic essence of taxpayer's right protection, thus make the protection of taxpayer's right feasible even more. Examining taxpayer's right protection question closely with economic visual angle has expanded the traditional analysis visual angle.2. The expansion of research approachSeen from the present, the research on taxpayer's right home and abroad pays more attention to law analysis and value judgment, make light of the economical and empirical analysis. Although the existing law and economics work has a lot of economic analysis on rights, the content and method of analysis is short of rigorous logic and firm structure. Especially, the research is insufficient to the constraint terms of taxpayer's right realization and how to seek the optimization of taxpayer's right under the constraint terms. With the introduction of research approach of law and economics, on one hand, it can find the optimum methods on taxpayer's right protection; on the other hand, it offers the theoretical direction for the rational game mechanism of taxpayer's interest group. Meanwhile, the economic analysis methods make the economical explanation in order to ensure taxpayer's right tactics actively. The text uses law method to carry on the basic definition to taxpayer's right, seeks the optimum way of taxpayer's right protection using the"cost and income"method of economics on the basis, and announce the dynamic optimization of the extensive interests using the game method.3. The innovation of theory view(1) The text thinks the cost of taxpayer's right protection is quantifiable. At the legislative stage, the expert cost used and study cost can be confirmed, how many rights does it establish also can be confirmed, then the price of each right at legislation stage can be confirmed. At the law enforcement stage, the manpower and material resources equipped for the taxpayer's right protection can be confirmed to the levy organ, how much taxpayer does it serve and how many rights does it establish can be confirmed, then the per capita price of each right protection can be counted. At the justice stage, in order to protect taxpayer's right, the per capita price of each right protection can be counted as mentioned above too. And the confirmed price of taxpayer's right protection can let us calculate the cost of taxpayer's right protection.(2) This text puts forward four standards of optimizing the taxpayer's right. The optimum protection of taxpayer's right include the following aspects: the taxpayer's right has everything that one expects to find; each link can get sufficient protection; the social cost is the lowest; the social income is the largest. The higher the cost of right protection which the taxpayer would like to accept, the better the taxpayer's right protection which such state organs as legislation, administration and justice can provide. Meanwhile, there is motive force to offer high-quality taxpayer's right protection in these state organs too, in this way, the taxpayer can accept the higher cost of taxpayer's right protection, and the state organs may obtain more taxes to realize one's own multiple interests.(3) This text brings forward two kinds of routes of optimizing the taxpayer's right protection. If the private product and taxpayer's right protection present at the same time, the taxpayer need buy the private product and taxpayer's right, only when the marginal rate of transformation equals the marginal rate of substitution can we realize the optimum disposition between the private product and taxpayer's right protection. If there is the public product only, when the marginal utility which the unit cost to the taxpayer's right protection brings equals the marginal utility which the unit cost of buying other public product brings, we realize the optimization of taxpayer's right protection. Through the analysis of discrimination treatments on taxpayer, we can know the levy organ will lead to great loss if they discriminate against the taxpayer's right.(4) The text explains the disposition questions of taxation consent right with property right theory. The taxation consent right is the fundamental right that taxpayer enjoys, which is a result of taxpayer's long-term struggle according to the historical experience, seen from the analysis of property right theory, the taxation consent right disposed to the taxpayer is a kind of choice filled with efficiency.(5) The text gets a series of game equilibrium with the game model. Through setting up the game model between taxpayer and levy organ, the text gets the equilibrium conclusion that taxpayer and levy organ enlarge one's own right as much as possible; proves the rationality of the game among taxpayer's interest group; points out the necessity that the levy organ ensures the taxpayer's right.(6) The text develops the application range of"Hand Formula"."Hand Formula"is suitable for the sureness of fault liability at first, but it can still get the further popularization. It is also suitable for the definition of burden of proof. The tax authority occupies the initiative in the administrative behavior of taxation, if the tax authority uses the convenient conditions of evidences collection that the country offers to keep the evidence in the course of the administrative law enforcement, then its cost should be much smaller compared with the evidence collected by taxpayer. Therefore, the tax authority should put forward evidence on the legitimacy of the administrative behavior."Hand Formula"has strong explanation strength to the burden of proof. |
