On The Criticizing And Reconstructing Of Pre-procedure Of Administrative Reconsideration On Taxation In Our Country

Pre-procedure of administrative reconsideration on taxation refers to procedures under which when the tax-paying contradiction between taxpayers and the tax authority occurs, the former must apply for administrative reconsideration and litigation can only be filed when they refuse to accept the results of it. It is helpful for tax authority to correct errors, assists in guaranteeing the right of taxpayers and contributes to relieve the court of burden. However, pre-procedure of administrative reconsideration failed to exert its function as it should have done because pre-condition is excessively stringent, the imperfection of which lies in that it requires the taxpayers must pay tax or guarantees themselves before they apply for administrative reconsideration. The pre-condition deprives the taxpayers, who are capable to pay tax, of their right of relief and protect the interests of state lopsided. On one hand, the setting of pre-condition violated the proportional principle under the premise that there has been the principle of non-stopping enforcement during administrative review and relatively thorough tax guaranteed system. On the other hand, it also violates the due legal process and the axiom that "where are rights, where are rights remedy" and infringes the guarantee for the lowest procedural rights of taxpayers. The reconstruction of pre-procedure of administrative reconsideration on taxation of our country can benefit from the successful legislation experience for it scientifically abroad. Our country should shed light on the relationship between the pre-procedure of administrative reconsideration on taxation and the revenue benefits of the nation, adhere to the harmonious society concept and idea of human rights, extend the precondition of administrative reconsideration on taxation and abolish the precondition that takes the forms of paying tax, paying overdue fine or offering relevant guarantee.