Research On The Competing Of Taxation Administration Penalties And Criminal Penalties

The competing of taxation administration penalties and criminal penalties has their reasons of forming and their existing territory,it exists in the object reality of law executing and often happens, so it is very important to explore and analysis this. In the practice of revenue law enforcement, if we cannot deal well the coordinating between the relation of revenue administration penalties and criminal penalties,it will influence the legal effects of the seriousness and impartiality on a certain extent,at present, just because the unclearness of the regulations of law and the argument in practice that made the two kinds of punishment sometimes repeat, sometimes lack. After grasping the problems and shortcomings, based on the actual situation of the country, borrow the methods of other countries, confirm the principal and formality of the current practice of the country is the only way of well coordinating taxation administration penalties and criminal penalties.This article is divided into three chapters:Chapter One"the competing of taxation administration penalties and criminal penalties",analysis the definition, characteristics and the important document of foundation of taxation administration penalties and criminal penalties,pointed out the four reasons of competing created by two kinds of penalties:because the gist of penalties are the same ending into competing,because the actions of being punished are the same ending into competing,because the punishment objects are the same ending into competing and because the composing important documents are the same ending into competing. Analysis the four domains of competing:tax evasion and tax evasion penalty competing,fraudulent claims for export tax and export tax rebate fraud crimes competing,competing of tax evasion and tax evasion crime, recovered crimes,competing of cheating for export tax return and the cheating for export tax crime, competing of the illegal production of fake invoices and VAT crimes, for the illicit manufacture of fraudulent claims for export tax rebates, tax deductions on invoices as well as the crime of illegal manufacture of invoice crimes,with this we have got a frame for the scope of the subject discussed by this article.Chapter two"the existing problems of our country in handling the competing of taxation administration penalties and criminal penalties",starting from law regulation and methods in practice, deeply analyzed the problems and shortcomings in handling the relations of taxation administration penalties and criminal penalties,the first is the unclearness of law regulations, no matter it is law, legislation or regulations, how to handle the relations of taxation administration penalties and criminal penalties correctly with no clear regulation,the existing provisions are fuzzy and scattered,this led to different understandings,tax authorities and the judiciary in accordance with their own understanding in their own ways,lack in one coordination system;the second is that the public security is lack of expertise, lack of funds and with limited manpower and other reasons,when they are investigating and dealt with tax related cases, emphasis is paid to some kind a particular cases but neglect other kinds of tax related crimes,the functions of criminal penalties are not fully effectively exerted;the third is that tax authorities are lack in the experiences of handling big and important cases, lack in necessary methods and the performing on administration penalties is difficult;the fourth is that the tax authorities and public security in collaboration with the existence of poor information etc. inadequate,the coordination of administration penalties and criminal penalties is very difficult, repeated punishment sometimes happen.Chapter three"the thinking on the handling methods on the competing of revenue administration penalties and criminal penalties in our country",it is divided into three sections:first section, research was carried out on the relation coordination of the administration penalties and criminal penalties of Japan, United States and Taiwan Area of China,Japan was found to take the dual mode system of punishment, the United States provides that criminal proceedings take precedence over administrative procedures,once the criminal procedures started,administrative procedures must be suspended. Based on the study on the foreign experience, the article thinks that the law regulations of all the countries and the methods in practice are all formed during the long-term historical practice with complicated culture, history and law etc. reasons,hard to tell which is which. In fact,the competing coordination of revenue administration penalties and criminal penalties have always been a very technical and complicated job,in practice, this limit usually is under the guidance of the legislation regulations and legislation spirit and mastered flexibly by the tax authorities and judiciary authorities,so our country will not only borrow the successful and effective methods of the other countries and areas but also combine with the actual situation of our country, coordinate well the relation between these two punishments. In the second section, based on the reality of our country, learn from the practice of all countries,brought up the two principals of coordinating the revenue administration penalties and criminal penalties of our country,the first is to insist on the superiority principal of revenue administration penalties, that is all the tax related cases should be first taken care of by the taxation authorities,as for the ones that tax authorities have already issued the tax recovery notice according to the law, tax and delaying fee should be paid and the administration penalties should be accepted,criminal responsibility will not be inquired;the second is to insist on the principal of combining and applicable in the revenue administration penalties and criminal penalties,as for the cases that really need to be chased for the criminal accountability of tax crimes, they should not only be applicable for criminal penalties,but also applicable for administration penalties,but must be under certain conditions that is the main body of responsibility should be the same, the action of disobeying the law should be the same, the constitution of offense with double nature and the kind of punishment with heterogeneity. The revenue administration penalties superiority principal was first brought up and it is also brought up for the first time in the research domain of competing and coordination of revenue administration penalties and criminal penalties,which is negative to the superiority principal of this domain,meeting with the actual situation of revenue law executing domain. Although the principal of the merger was not brought up for the first time, but the four conditions limited in the text have great significance meaning. The third section is the prospect for the future,through the studies of the countries of Japan, united States and Germany etc., combined with our academic appeal,the author thinks that the public security organs at all levels should take the department in charge of revenue criminal investigation as an independent organization and set up a tax crime investigation bureau,the bureau should belong to the public security authorities in organization but at the same time under the leadership of the tax authorities,that is the double leadership of public security authorities and the taxation authorities. Tax Crime Investigation Bureau has the right to do the investigations on the tax related criminal cases, detain, arrest and pre-trial and can be placed on file for investigation on the cases, through the investigation of Tax Criminal Investigation Bureau, the author thinks that the crime of the tax payer has a minor offense and does not constitute a crime, or although it constitutes crime but can exempt the criminal penalties,the Tax Criminal Investigation Bureau can directly make the decision for tax administration penalties;for those recognized as constituting a crime, it will be transferred to the procuratorial authorities for lawsuit.The whole article tries to put everything under the big background of controlling taxation according to the law and has done an overall and deep research on the competing of revenue administration penalties and criminal penalties,proved the reasons of competing,analyzed the problems and defects, found a reasonable and feasible solution. Not only borrowed some of the points of the theory domain, but also analyzed and abandoned on these points of view according to the revenue law enforcement practice,introduced in details the law enforcement organizations of the tax authorities, staff and working modes,clarify the reasons and important meanings of insisting the superiority principal of revenue administration penalties and found a new route for coordinating the relations of revenue administration penalties and criminal penalties. Vision for the future is based on the reality of our country, although borrowing from foreign experience, but the main focus is on the law enforcement to adapt to the tax avenue of our country,setting up Tax Crime Investigation Bureau is only a wish, the legislation should be amended, the mechanisms should be perfected, the process might be a long process. At present, we can follow the principal of both loose and tight,reasonably adjust the constituting standards of revenue crime,lessen the competing of administration penalties and criminal penalties, raise the law enforcement efficiency and effectiveness of taxation.