Study Of Several Issues On Determination Of Crime Of Tax Evasion

Activity of crime of tax evasion is one of the crimes that, among crimes harming tax collection and control order, has the widest case arising proportion, highest case arising frequency and causes most of the loss of national tax. It has been the main object to be punished among crimes harming taxation and is the main reason why criminal law lists crime of tax evasion in the first place of crimes harming tax collection and control. Clause 121 in Criminal Law 1979 specifies that for those who break taxation laws, evade tax or refuse to pay taxes by violent means, if the circumstance is severe, directly responsible personnel shall be subjected to imprisonment for under 3 years or detention, in addition to payment of tax evaded as per taxation laws and being fined. This specification, however, is too vague, not easy to operate or suitable for the change of crime of tax evasion. Furthermore, the penalty is somewhat gentle, causing ineffective crackdown on some serious crimes of tax evasion. Thus, the NPC issued, in September 4th 1992, "Complementary Stipulation Concerning Punishment of Crimes of Tax Evasion or Refusal to Pay Taxes by Violent Means", which made some complement and modification to Clause 121 in Criminal Law 1979. in March 14th, 1997, the Fifth Meeting of Eighth Session of NPC comprehensively revised the Criminal Law; Clause 201 introduced the content of Clause 1 of "Complementary Stipulation Concerning Punishment of Crimes of Tax Evasion or Refusal to Pay Taxes by Violent Means" and further modified and perfected constitution and punishment of crime of tax evasion. Along with the revision of criminal law, thedetermination of crime of tax evasion is advanced both theoretically and practically. In practice, however, thought impacted severely by judicial authorities, crime of tax evasion never stops; the amount of crimes is increasing; and the methods of crimes are updated, seriously damaging the national system of tax collection and control and influencing the beneficial cycle of economic development. Consequently, it seems especially important to perfect criminal jurisprudence, intensify tax collection and control and strike crimes involving taxation.Based on the stipulation of the current criminal law, this essay mainly performs initial study of issues on determination of crime of tax evasion, with a view of benefit of judicial practice.The thesis consists of five parts as follows:Chapter I is the general description of crime of tax evasion. It briefly reviews the general condition of criminal jurisprudence of tax evasion since the foundation of PRC, introduces the great breakthrough of criminal law of 1997 regarding crime of tax evasion, and through analyzing various expressions of concept of tax evasion, gives the following definition to the concept of tax evasion: crime of tax evasion refers to conduct with severe circumstances, done by a taxpayer (withholding agent) who purposely breaks taxation laws or regulations through forging, altering, concealing or destroying bookkeeping accounting vouchers without authorization or listing excessive expenses or non-listing or less listing of income or who has been informed by taxation authorities for declaration but fails or uses false taxation declaration method to non-payment or less payment of tax payable (or tax deducted or collected), whose amount of evaded tax has reached legal amount, or who hasreceived secondary administrative punishment for tax evasion from taxation authorities and commits tax evasion again, or who, after tax payment, swindles the tax paid through false declaration of export or other means.Chapter II discusses the determination of the objective element of tax evasion. Objective aspects of tax evasion is shown by doer's conduct of tax evasion reaching the legal quantitative standard, i.e. doer's criminal conduct of non-payment or less payment of tax through conceahnent or cheating or trick means as specified by criminal law, by breaking national taxation laws and regulations. This part emphatically discusses the thr...