Research On Several Problems Of Practice Favoritism And Malpractices, Not Collecting And Collecting Less Tax Crime

The regulation No. 404 in the"Criminal Law of the People's Republic of China"after editing in 1997:"For the tax authorities practise favouritism and malpractices,not collecting or collecting less should-collected tax and making the nation lost big loss, the staff working will be sentenced for 5 years in prison or detention;if they make very big loss, they will be sentenced to more than 5 years in prison". As a new criminal code charges, it is an important kind crime of dereliction of duty. The establishment of this crime will help the whole society to establish the concept of the rule of law in tax, and embody the spirit of the strict rule of officials. For the tax staff, no matter who seek personal gain by public power at the cost of sacrificing the national interests, section to severe penalties should be given. It effectively deterrent the ones in the main body of revenue who have attempt to defy the law,and put an end to the maximum the happening of"using feeling instead of law","using friendship instead of law","using language instead of law". Finally, establish the authority of the tax laws and the awareness of the rule of law in tax. But with the development of legal practice, the crime of the tax staff related with tax practise favouritism and malpractices is becoming more prominent,the defects of this crime in legislation and legal explanation highlights the growing. Combing with the tax practice of our country, the article has done theory research and discussion on the crime of practise favouritism and malpractices, not collecting and collecting less tax.The text of this article is divided into four parts.The first part, looking back the legislation of our country ever since the foundation of our country on the crime of the tax staff for practise favouritism and malpractices, not collecting, collecting less tax, the necessity of this crime and the basic constitution of the crime. Before the actualization of the criminal law of 1997,for practise favouritism and malpractices not collecting or collecting less tax of the tax staff,if they made the country a big loss in taxation, they were dealt with in reference to dereliction of duty crime not a single crime. But the practice shows that some tax staffs ignore the seriousness of the national taxation policies, using the power they have to trade with tax payers,giving tax reduction as they wish, its social harm is more serious. If we hold the responsibility as the crime of dereliction of duty, it will be hard to punish them just for their crime. Just because of this, in 1997, the criminal law of our country for the first time formally regulated practise favouritism and malpractices, not collecting, collecting less tax as a crime. The setting up of this crime makes the country to go in two ways,from two main aspects of the main regulatory and tax collection and management,maximize the revenue of the country not loss or loss less;improve the types of penalties,completely prescribe the types of tax crime;raise the legal status of tax payer and actually protect the rights of the tax payers.The second part is the research on the crime composing of this crime. The main body of this crime is a special main body,it not only includes the staff in taxation departments but also the staff in finance departments who are in charge of the collection work and accepted the nomination of tax authorities as the agent, in the name of tax authorities to carry through the task of tax collecting according to the law. This crime subjectively can only be intentional,including direct intent and indirect intent. Among them,"practise favouritism"as the causes of heart for pushing this perpetrator to actualize the dereliction of duty,it is the motivation and it is the necessary important part of forming practise favouritism and malpractices type of dereliction of duty crime. The substance of returning to the unit dose not levy or collect less by sacrificed the tax benefit of the country to exchange for the benefit of the individual tax authorities. In fact it enlarged the individual benefit. So,"practise favouritism"not only indicates the favouritism of one person but also includes the favouritism of the working unit. The object of this crime is a complicated object,that is the integrity of the national taxation revenue management system, the normal management activities of tax authorities. This crime will be a result crime that the staff from tax authorities must have implied the acts of practise favouritism and malpractices,at the same time this action must have made the taxation income of the nation a big loss and then compose the crime.The third part is the analysis on this crime with the related crimes. 1. The relation of this crime with tax evasion crime. Criminal law regulates that the crime of tax staff because of practise favouritism and malpractices, not collecting or collecting less tax will be regarded as professional crime. As long as they act in the course of performing this duty and fulfill it by using the convenient conditions of the profession, then the nature of the crime should be the crime of professional acts not a general accomplice of crime. Despite the fact that the perpetrator cooperate with the tax evasion person ahead of time, it still cannot change the nature of the crime of the tax staff for professional crime. So the actions of the taxation department staff of practise favouritism and malpractices, not collecting or collecting less tax,usually can only fix as practise favouritism and malpractices, not collecting or collecting less tax crime. Only when the perpetrator has the crime of intentional tax evasion, practise favouritism and malpractices, not collecting, collecting less tax crime and recognize tax evasion at the same time,it will be regarded as tax evasion crime. 2. The perpetrator utilizes his convenience in profession to solicit bribes and bribe-taking, this crime should be punished with several crimes together. In the action of practise favouritism and malpractices, not collecting or collecting less tax, usually practise favouritism and malpractices is not only a general lee favoritism personal relationships,but often connecting with the soliciting bribe action of the perpetrator. With the purpose of accepting bribes, the perpetrator objectively uses his position to implement the behavior of accepting or soliciting bribes,violate the integrity of their official activities. As a pay back,the perpetrator has the intention of getting illegal benefit for the tax payer,create the new criminal intention of the tax payer for not handing or handing less tax and implement the action of not collecting and collecting less tax to achieve the criminal purpose of making the national tax damaged. The perpetrator of the crime in two different deliberately dominated by the implementation of the two criminal acts in the pursuit of two different crimes,they respectively have the elements of action crime of accepting bribes and the result crime of this crime. Thus, for the crime of not collecting or collecting less tax of the staff, after getting the bribe they should be punished as two crimes together or several crimes together for punishment. 3. The staff of tax authorities commits this crime because of withholding tax and dividing action. During the tax collecting process,they withhold the tax money the tax payer or the tax agent hand in which should be handed over according to the law,since the tax payer or the tax agent has already handed in the should-paid-tax money,at this time the tax money has already become public funds which is public property. As the tax staff of the country, using their power and illegally occupying this tax money meets the characteristics of the elements of the crime of corruption, they should be sentenced with the two crimes of this crime and crime of corruption.The fourth part is the reflection and perfection on the legislation of this crime. In tax criminal legislation,we will not only ensure the full collection of the national tax but also protect the legal rights of the tax payers not invaded by extort excessive taxes and levies,criminal tax legislation should not over-emphasize the development of the country's social and public interests,but at the same time should concern about the protection of the legitimate rights and interests of private property. So,we should put collecting more tax into the adjusting scope of the criminal law,connecting it with the current practise favouritism and malpractices, not collecting or collecting less tax,summarizing illegally collecting more, not collecting and collecting less tax into a general crime. And amend this crime charge as"crime of collecting tax by their willingness". The filing standard for this crime is too high that does not meet the legislation spirit and the actual situation of our country. Establishing a legal base that is relatively consistent with the objective of judicial standards will be more beneficial to realize the legislation intention on this crime,and will hit revenue dereliction of duty crime and realize the prevention function of penalty. So, we suggest amending the register standard of this crime into 30,000 yuan.