On The Difficult Problems Of The Crime Of Falsely Issuing Special VAT Invoices

As one of the relatively high incidence of economic and tax crimes,the crime of falsely issuing VAT special invoices has a serious impact on China’s tax order and tax loss.Cases involving false issuance of special VAT invoices involve not only judicial issues,but also issues in the field of taxation,and criminal law theories and judicial practice have different views on this crime,and have disputed the judgment results of relevant cases.In the process of judicial practice,due to the influence of various factors,it may lead to different judgments in the same case,which is easy to cause judicial injustice,and provides an opportunity for criminals to take advantage of.Therefore,this paper mainly focuses on three difficult and controversial issues of this crime: first,whether the crime of falsely issuing VAT special invoices is an act offence,a purpose offence,a result offender or a dangerous offender;Article 205 of China’s Criminal Law adopts the form of simple expression,so according to the understanding of the crime under the law,as long as there is a false act,it can constitute this crime.In this case,the perpetrator theory becomes the general interpretation of the constituent elements of the crime.Through the analysis of the existing theory of perpetrators,consequent offenders,dangerous offenders and the purpose offender theory currently recognized in judicial practice,the doctrine of perpetrators of acts does not conform to the principle of proportionality of criminal responsibility,the doctrine of consequential offenders is contrary to the original intention of legislation,and the theory of dangerous offenders is incompatible with current legislation.From the perspective of the legislative purpose of this crime,the principle of proportionality of crime and punishment,etc.,it is claimed that this crime should be a purpose crime.Second,how should the special false opening act in the crime of falsely issuing special VAT invoices be determined.In view of the analysis of the more controversial acts of truthful substitution,opening on the contrary,opening the ring,passing votes,and changing votes,etc.,it is claimed that this crime should not be constituted.In practice,there are more complex acts such as issuing special VAT invoices,which have the appearance of false opening in form,but have no purpose of defrauding the state tax or objectively do not cause the danger of losing the state tax,so it cannot be recognized as this crime.For the subjective aim of defrauding the state tax,and objectively does not cause the loss of the national tax,the act of truthful issuance shall not constitute the crime of falsely issuing special VAT invoices.The act of opening and ring opening does not have the nature of defrauding the state of the preparatory act of obtaining taxes,and the perpetrator subjectively has no purpose of defrauding the state tax,so it cannot be recognized as this crime.In the act of changing invoices,the "transaction" of "ticket change" cannot be generally regarded as false opening,and the "tax" that causes tax losses should not be interpreted in an expanded way,and it may be more appropriate to identify some of the acts of ticket change as other crimes such as tax evasion.Third,the method of determining the amount of the crime of falsely issuing value-added special invoices is not uniform.The amount of crime in this crime includes three aspects: the amount of false tax issuance,the amount of defrauded state taxes,and the amount of state tax losses,and in practice,whether there are real transactions can be classified and the amount of each crime determined in light of the specific circumstances of the perpetrator.The act of falsely issuing special VAT invoices is divided into partial real transactions and non-existent real transactions,and the amount of crime is determined according to the different cases of the doer’s false behavior,When the actor only falsifies one of the special receipts or invoices,it is determined by the amount of tax marked by the special invoice;If there are two kinds of tax invoices of false input and output at the same time during the same period,the larger amount shall prevail at the time of determination.