On Exclusionary Rule Of Illegally Obtained Evidence In Tax Check

The issue of evidence is the key problem of lawsuit, and it is also the central issue during the process of administrative law enforcement at the same time, while the exclusion for illegally obtained evidence during law enforcement and lawsuit is a problem demanding prompt solution in evidence theoretical circles and in practice. Although the provision about strictly prohibiting collect evidences by illegal means is formulated in the Criminal Law and Administrative Procedure Law of our country, the problem about effectiveness of evidence obtained by illegal means is not definitely formulated. Although Supreme People's Court and Supreme People's Procurator ate institute fundamentals of law for exclusionary rule of illegally obtained evidence in judicial interpretation, those provisions still exist many incomplete places seen from judicial practice. For the issue of collecting evidence during tax check procedure, because there is not a unified laws on tax collection, except for a few provisions in Working Regulation of Tax Check, most provisions are based on Administrative Procedure Law and Regulations on Some Problems about Evidence in Administrative Litigation, however, those provisions not only exist certain defects, but also are not very suitable for tax check procedure, because tax check is a process which evidence collection and punishment are done by itself.In practice, although every tax authority works hard for administrating according to law and regulating the law enforcement for each link from tax payer deals with tax registration to tax payer is investigated and punished by tax authorities for illegal activities. However, the flaw in the plan, whether the collecting process of tax check evidence, which is the decisive link of tax administrative law enforcement procedure, is standard and legal is often neglected by many tax authorities, which result in that tax authorities are placed in passive situations during the following possible administrative reexamination and administrative proceedings processes. Therefore, author of the paper considers that it is necessary to introduce exclusionary rule of illegally obtained evidence in tax check procedure as the standard for specifying the behavior to collect evidence of tax check, and it is also the wave of the future for integrating with international evidence regulations, which should arouse extensive attention of relevant personnel. In tax administrative disputes which are possible to appear after tax check procedure, the key point that whether tax authority can be in active place is that whether evidence collection process is legal. It is possible not agree with the current situation of tax check procedure in our country and certainly not benefit the development of tax check work in our country for completely copying British and American exclusionary rule of illegally obtained evidence. While establishing a kind of exclusionary rule of illegally obtained evidence aiming at the current situation of tax check in our country will have great simulative function for specifying evidence collection. Therefore, through combining the tax work reality of author and applying positive analysis and comparative analysis, the core position of tax check evidence in the whole check procedure is illustrated by the author in this paper firstly starting from the conception, characteristics and functions of tax check evidence. After that, the significance for validity of tax check evidence is illustrated through analyzing the connection between tax check evidence and lawsuit evidence. Then the significance for validity of tax check evidence on the following aspects, such as protect the lawful right of tax payer, safeguard the dignity of the Constitution, standardize tax administrative enforcement action, promote administration according to law as well as maintain the good image of tax authority, set up social trustworthiness, is illustrated through analyzing the current situation of existing tax check evidence system in our country by the author so as to show that it is necessary to duly and moderately introduce exclusionary rule of illegally obtained evidence in tax check evidence. Through the discussing on the contents, such as the selection of exclusion standard, the setting of exclusion contents, the establishment of corresponding mating systems etc., in tax check procedure, and establishing the assumption of how to perfect existing tax check evidence system when exclusionary rule of illegally obtained evidence is not mature, based on the above, under the current situation that our country has not established unified Administrative Procedure Law at present, it is advocated that evidence-collecting actions of tax inspectors are standardized through reasonably introducing exclusionary rule of illegally obtained evidence so as to change the current situation that tax authority is in passive situation during administrative dispute with tax payer and also try hard to eliminate the disparity with economic investigation department on the aspect of adopting criminal evidence concerning taxes of tax payer at the same time. The core part discussed by this paper is Chapter 3, that is, the construction of exclusionary rule of illegally obtained evidence in tax check. Through analyzing the selection of exclusion standard on the following three aspects, such as, keep procedural justice, limit public power and accurately handle the relationship between efficiency and procedural justice, the establishment of following three mating systems is assumed by the author in tax check procedure: setting four contents of illegal exclusion, imprimitive exclusion, degree exclusion and the exclusion of fruits of the poisonous tree, perfecting tax payer's right to know and to apply exclusion for exclusionary rule of illegally obtained evidence and perfecting punishment system for people illegally collecting evidence as well as strengthening two-Supremes or State Tax Administration's directive function in the application of exclusionary rule of illegally obtained evidence of tax check, so as to discuss how to establish exclusionary rule of illegally obtained evidence in the present tax check procedure in our country.Of course, the establishment of exclusionary rule of illegally obtained evidence in tax check can't be reached in one step which is the same with the establishment of other systems, it is also a process which proceeds in an orderly way. In the process, it not only requires the rule itself but also requires a complete set of system matching with it, the rule is effective and can be gradually perfected only through such way. However, no matter the rule itself or the mating system, their establishment processes will not be successful, because it is supposedly very difficult to break the rooted and comparatively arbitrary ways of evidence collection in tax check procedure in the past. Therefore, tax authorities must strengthen the communication and education of internal legal system, actively increase the legal quality of tax administrative law-executor and culture extensive tax law-executors to establish such logos: collect the evidence material which can prove the fact of case according to the provision of procedural law under the premise of guaranteeing the fundamental human rights of tax payer receive respect. Moreover, existing evidence system also should be gradually perfected by legislature from the angle of legislation or amending relevant laws, which make tax check organs enjoy the right to coordinate with public security organ and enjoy the rights of conditional investigation, search and retention, at the same time, strict responsibility for illegal behaviors of evidence collection is enacted in relevant laws and regulations. Only in such way, a good atmosphere and condition can be created for the establishment of exclusionary rule of illegally obtained evidence in tax check, and the exclusionary rule of illegally obtained evidence in tax check procedure is also no longer an imagination and plan.