法治视角下中国税法改革的最新进展

Rule of law is the basic way of governing a state,as well as the basic principle of tax law. Tax reform in China has obtained great achievements in legislative,administrative and judiciary areas under the guidance of rule of law. This article aims at introducing the recent achievements China has achieved and making some comments on certain topics. Atthe legislative level,the principle of legality in taxation is the fundamental principle of tax law. The recognition of the principle reflects the extent of a society’s democracy. China’s revised Legislative Law in 2015 has further confirmed the principle of legality in taxation with a more specific and much clearer description of the elements which should be regulated by law only. Before the tax reform,there are only three among eighteen tax categories regulated by law,let alone other kind revenues. The existence of a large number of authorized legislation caused great damages to the authority of tax law. Now since the tax reform took on,the successive enactment of several tax law drafts,alongside with the legislative plan which sets schedule for legitimating the interim regulations on tax have shown China’s determination in promoting the principle of legality in taxation. Despite of the fact that China has achieved a lot in the area of tax legislation,there are three challenges remaining to be faced in the future. Firstly,China’s top lawmaking body National People’s Congress needs to enhance capacity building due to the arduous legislation duty. Secondly,local government’s practical need to participate in the local tax’s legislation requires modifications or further explanations of current law,which does not reserve any space for local governments ’participation. Lastly,on the one hand,the principle of legality in taxation requires the tax administration abide strictly by law,and on the other hand the tax administration is entitled to legitimate discretion since the law cannot cover all the circumstances that may occur during the process of tax collection and management. These problems need to be solved in the following tax reform. At the administrative level,the draft vision of Law on the Collection and Administration of Taxation in P.R.C. has made several substantial modifications based on the legislation idea of regulating the administration’s tax collection activities and protecting taxpayer’s legitimate rights. Apart from the legislative progress,China’s State Administration of Taxation has also issued a series of official documents,putting the tax administration’s activities into the legal track. According to the documents,all tax personnel are required to obtain relevant qualification certificates before conducting any tax collection or management,which enhances the law enforcement team’s ability by screening out the unqualified staffs. Tax regulatory documents and decisions made in taxation,of which the legal effect are lower than tax laws,have profound influence on taxpayer’s benefits as well. Strengthening the legal review of tax normative documents and important decisions can largely improve the degree of rule of law in administrative area. What’s more,State Administration of Taxation has vigorously promoted the establishment of public servant lawyer system,which means officials with legal practice qualifications can participate in lawsuits concerning tax,helping to solve conflicts between the administration and taxpayers. Hiring social lawyers and inviting experts as tax advisers shall assist the administration in formulating tax regulatory documents and making tax decisions. Last but not least,to restrict the administration’s discretionary power of administrative punishment,State Administration of Taxation has made more specific provisions and issued several typical cases as the guiding cases. All the measures are aimed at improving the level of tax administration,and effectively promote tax law. At the judicial level,things have changed a lot as well. In China,to put forward an administrative lawsuit concerning tax is not an easy work: a taxpayer can only institute an administrative lawsuit after he/she has put forward an administrative review; and to put forward the administrative review,he/she should pay the disputed tax or provide the guarantee first. As the double pre-procedure of tax administrative litigation has been an obstacle for taxpayers to exercise their rights in China in a fairly long period of time,the 2015 draft vision of Law on the Collection and Administration of Taxation in P.R.C. responded to this problem for the first time and offered some possible solutions. Also,the cross-regional trial reform happened in the whole country has made it possible to promote the specialization of tax-related litigation. Taken the fairly low rate of administrative litigation especially the tax-related ones,the reform is not only of great significance but also necessary. Furthermore,the provisions of the new Administrative Procedure Law greatly advanced the process of rule by law. Article 51 abolishes the court’s discretionary power on filing cases. This reform on court’s acceptance system has offered more chances for taxpayers to get remedy for their infringed rights. Article53endows the court with the power to review abstract administrative acts,namely the tax regulatory documents,effectively broadening the ways to relieve legal rights. In general,the newly revised Administrative Lawsuit Lawhas provided a solid system guarantee for the taxpayers to obtain more adequate relief. Tax reform’s latest move in judicial area has reflected judicial system’s role as the maintenance of social fairness and the last defense of unfairness. In the past few years,China’s tax reform has been on the right track,aiming at a more standardized and developed tax law system. However we should realize that tax reform is a systematic and lasting work,requiring both wisdom and willpower. To examine whether a reform is in accordance with rule of law,there are two criteria. One is to regulate and restrict the power of tax administrations under the guidance of “method without legal authorization is prohibited” principle；one is to protect the legitimate rights of taxpayers under the guidance of “absence of legal prohibition means freedom” principle,especially to give timely and adequate relief when taxpayer’s rights are infringed. These two principles reveal the inevitable trend of tax civilization,which is also,what China’s tax reform must adhere to.