Reflection on the First Offense Exemption Clause of the Crime of Tax Evasion in China

The first offense exemption clause of the Crime of Tax Evasion in China embodies the normative purposes of both guaranteeing the national tax revenue, maintaining the order of tax collection and administration, and displaying the modesty of criminal law, and setting up the “Golden Bridge” for the actor to retreat. The provisions of the first offense exemption clause only apply to the taxpayers who have evaded a large amount of taxes but not to the withholding agent. This not only has legal basis, but also in line with the needs of reality. The first offense exemption clause can only be applied to taxpayers if they have committed tax evasion under Paragraph 1 of Article 201 of the Criminal Law of the People's Republic of China and they have accepted the orders of the tax authorities for correction and administrative punishment, moreover, the extent of back-payment of taxes, late fees and fines, and the subjective attitude of accepting administrative punishment will affect the application of the exemption clause for first-time offenders. The first offense exemption clause of the Crime of Tax Evasion is faced with loose applicable conditions, which does not fully reflect Criminal Policy of Temper Justice with Mercy, which shows that the administrative power has arrogated over the judicial power and gradually evolved into the applicable predicament of a “Get-out-of-jail-free card”, in order to solve the dilemma of its application, it is necessary to improve its application conditions, increase the amount of tax evasion in different proportion, clarify the powers of various organs, and ensure the seamless connection of the two-way linking mechanism between administrative law enforcement and criminal justice, at the same time, further normative interpretation and in-depth excavation of the first offense exemption clause of the Crime of Tax Evasion of the legal basis to solve practical problems.