Empirical Analysis And Research On Tax Subrogation Litigation In China And Its Institutional Improvement

In China’s financial revenue sources,tax revenue accounts for a very high proportion,but in the practice of tax collection and management,the situation of tax loss is inevitable,which is a huge loss for the national finance.Therefore,the importance of tax preservation is selfevident.Before 2001,the collection of taxes based on traditional tax preservation methods such as sequestration,attachment,and freezing could only reach the taxpayers themselves,and could not break through the relativity of debt to claim claims against taxpayers’ debtors to safeguard national tax rights and interests.In this context,it is not uncommon for taxpayers to maliciously fail to exercise due claims and indirectly cause tax losses.Therefore,when the "Tax Collection and Management Law" was amended in 2001,legislators creatively introduced the subrogation system in the field of civil law,which to some extent made malicious tax evasion impossible to evade.With the further improvement of traditional tax preservation measures and the combination of the tax subrogation system,tax authorities can further protect national taxes.However,due to unclear legal provisions and insufficient practical experience,the role of tax subrogation for the purpose of protecting national tax revenue has not yet been reflected.In judicial practice,there are various issues emerging in endlessly,such as insufficient detailed provisions on the constituent elements of subrogation,disputes over the scope of subrogation,inefficiencies and conflicts in the jurisdiction of subrogation litigation,difficulties in the burden of proof of the plaintiff in subrogation litigation,and obstacles to the protection of national tax rights and interests,as well as loopholes in the protection of the rights and interests of secondary debtors.In view of this,this article first briefly summarizes and comments on the theoretical research on tax subrogation,explains the legal basis of the tax subrogation system from the perspectives of tax creditor’s rights theory,tax subrogation compensation rules,and combs the thinking of domestic scholars since the establishment of the tax subrogation system from multiple perspectives such as legislation and justice.Secondly,it evaluates the background and significance of the establishment of tax subrogation in China’s tax system,and systematically compares tax subrogation with general civil law subrogation in terms of constituent elements,protection of rights and interests,etc.Thirdly,based on the examples of relevant subrogation litigation cases since the establishment of tax subrogation,this thesis makes a simple quantitative analysis of the actual situation of tax subrogation litigation in China from the number of cases,the outcome of the winning or losing lawsuit,and the type of case closure.It also summarizes and sorts out some practical disputes arising from tax subrogation litigation from the perspectives of substantive law,procedural law,and the protection of the rights and interests of secondary debtors.Based on the facts of the case,this thesis analyzes the problems and considerations in China’s subrogation litigation.Finally,based on the systematic analysis of the problems encountered in various aspects of the practice of tax subrogation by tax authorities,I propose some suggestions and reflections on the construction of relevant systems.The following main issues exist in the current process of exercising tax subrogation rights: determination of the scope of subrogation rights,jurisdictional disputes,difficulties in providing evidence,and protection of the rights and interests of secondary debtors.The author believes that when determining the scope of subrogation exercise,late fees and fines should be treated differently,with late fees as the main debt with economic compensation nature and fines as economic sanctions based on subjective malice.For disputes arising from jurisdiction,we should fully draw on the handling methods of general creditor’s rights subrogation,take into account the principles of tax efficiency and judicial fairness,and set up regional tax courts and fully consider the agreed time nodes for the formation of jurisdiction,in order to avoid inconvenience and disputes caused by existing jurisdiction settings.At the same time,considering the fairness of the allocation of burden of proof and the particularity of the exercise of tax subrogation rights,it is appropriate to allow the inversion of burden of proof in tax subrogation rights.It is particularly important to strengthen the protection of the legitimate rights and interests of secondary debtors,starting from regulating the administrative rights of tax authorities and the discretionary power of judicial authorities.The author mainly relies on the collation of relevant cases,in-depth analysis of practical issues beyond theory from the perspective of empirical trial practice,with a view to digging out areas worthy of deep consideration,so as to provide reliable and beneficial reference for improving China’s tax subrogation system.In this process,the deeper one goes,the more one can feel the characteristics of system design that affect the whole body,and the more one can feel the conflicts and difficulties that the entire system design of tax subrogation may face.The author believes that the most obvious conflict is between the national tax rights and the legitimate rights and interests of secondary debtors.This conflict has an undeniable impact on the establishment of the constituent elements of tax subrogation,as well as the establishment of jurisdiction and the regulation of the burden of proof.This is also the point that the author focuses on thinking and explaining in his writing.Throughout the entire structure of this article,more than ten relevant cases have been cited and the focus issues and relevant cases have been sorted out,aiming to express the above conflicts through the case and transform them into actual manifestations of legal conflicts.Of course,for some of the issues involved,the writing is limited,and the author can only point out a little of that.