【作者】 许安平；

【导师】 张怡；

【作者基本信息】 西南政法大学 ， 经济法， 2010， 博士

【摘要】 全面解读现代税法的制度构造是本文的首要目的。不管是历史上,还是各国间,税收制度都存在巨大的差异。对现代税法制度构造的解读,仅仅实证分析是不够的,而必须深入到现代税法制度的背后,探明支撑现代税法制度构造的基本原理,阐明其形成原因并说明其发展趋势。现代税法的基本原理包括技术原理与公理性原理。技术性原理代表税法中的工具理性,公理性原理则代表税法中的价值理性。当今的税法理论希望在本体论意义上讨论税收正义问题,包括税收法律主义这种形式正义原理和税收公平主义这种实质正义原理,因而刻意压抑甚至拒斥税法中的工具理性。但由于税法从一开始就是实质法,全部税法规则和制度都有其直接目的,如基本的财政收入目的,以及财富再分配、矫正经济活动的外部性、调控宏观经济的运行等经济干预目的,必然要求税法规则和制度对于实现税收立法目的的有效性。这是税法中的工具理性,是由税收立法的实质目的决定的,是作为手段的税法规则和制度的合目的性问题。税法的实质法特质决定了技术性原理是现代税法制度建构的重要原理。技术性原理决定手段对目的的有效性,提示事物之间的客观联系,更多地属于科学判断而不是价值权衡问题。税法中的技术性原理以客观事实为基础,受社会现实制约。但技术性原理不能赋予税法以正当性,现代税法必须经过公理性原理的过滤才具有正当性,因此公理性原理也是现代税法制度建构的重要原理。公理性原理与价值权衡有关。技术性原理与公理性原理的关系可以理解为,技术性原理是现代税法的底层原理,公理性原理建立在技术性原理之上。仅仅在本体论上讨论税收正义问题的现代税法理论构造是扭曲的和不完整的。现代税法的制度构造有其相应的社会基础和观念基础。第一章首先分析了古代农业社会税收制度的社会基础,目的在于通过历史比较说明社会现实对税收制度建构的决定性影响,以及税收制度的发展脉络。古代税制建立在农业社会基础上,以土地税收为主,辅以按人口征收的手工品和劳役。随着生产力的提高,人头税逐步并入田亩税中。现代税制建立在现代工业社会和市场经济基础上,以所得税及增值税为重心。税制的目的也从单纯的财政目的发展到各种经济干预目的。近现代的经济学、理性主义和人文主义的哲学和法治思想是现代税法的观念基础。税法是实质法,全部税法规则和制度都有其所欲实现的直接目标。税法规则和制度是实现预定目标的手段,需要按照手段对目的的有效性的方式构造全部税法制度。这是税法中的技术性原理或者工具理性,要求税法中的具体制度间功能上协调一致。阐明现代税法制度构造中的技术性原理离不开结构功能分析。为了实现现代税法的财政目的和经济干预目的,现代税法在结构上分化出税收实体法与税收程序法两个重要部分,并具有各自所要实现的具体功能。第二章分析了税收实体法的制度结构与功能。税收实体法的基本功能是决定什么情况下产生纳税义务,其制度结构包括成立纳税义务(税收债务)所需要满足的各项条件,即税收的构成要件。这些条件包括纳税人、课税对象、课税对象的归属、课税标准和税率等。文中从技术性角度分析了它们作为税收构成要要件所具有的意义。另外,税收实体法逻辑上还包括纳税义务的继承、减免以及税法责任等制度,它们在实现现代税法的财政目的和经济干预目的方面具有各自的功能或意义。第三章分析了实质课税原理。实质课税是税法中的技术性原理,而不是通常认为的公理性原理。实质课税是从税收的财政收入目的引申出来的,要求通过税法的文字规定捕捉到客观存在的经济税源并将其法定为课税对象,以课税对象的经济利益归属之人为纳税人,课税对象产生的原因事实不影响课税。实质课税要求税法的解释不应拘泥于税法的文字形式,而是应当根据其所具有的经济意义进行解释。实质课税具有强烈的反避税功能。但实质课税有使税法规定的课税要件流于形式的可能,因此应受税收法定原则的适当限制。实质课税不仅仅是实体税法制度构造的基本原理,也不仅仅是税法运行过程中即有关税法解释和适用的基本原理,它还是有关事实认定的基本原理,即需要考虑课税事实(证据事实)所具有的经济意义,因此也适用于税收程序法。现代工业社会存在的征税机关与纳税人间有关课税要件事实的信息严重不对称现象,促成了专门税收程序的产生。税收程序法的基本功能就是阐明课税事实、确定税额、保证税收的实现。第四章说明了阐明课税事实的需要,产生了纳税人的、主要经由纳税申报的信息提供义务,以及征税机关收集要件事实为目的的税收调查权。一般纳税程序包括自行申报纳税程序和课赋纳税程序,都包括纳税申报、税额的确定、税款交纳、税收强制执行等程序环节。自行申报纳税程序中,纳税人具有一定的程序自主性,因此纳税申报可产生确定税额的效力。课赋纳税程序由征税机关主导。特别纳税程序包括源泉征收和印花税票纳税方式,由于豁免了纳税人的申报义务,因此是简易的税收程序。为了防止纳税义务履行期间,即纳税义务产生后、消灭前的期间,因纳税人的行为而危及国家税收利益的安全,现代税法另定有若干保证国家税收利益安全的制度。技术性原理不能赋予税法以正当性,必须经过公理性原理的过滤。公理性原理代表税法中的价值理性。公理性原理首先指有关税收正义的形式原理即税收法定原则。税收法定原则是近现代法治思想在税收领域的体现。第五章分析了税收法定原则的基本内容和所涉及的其他问题,以及税收法定原则在当代的困惑。公理性原理其次指有关税收正义的实质原理,即税收公平原则。税收公平原则源自宪法所定平等原则。税收公平原则的核心内容就是按税收负担能力分配税收负担,即量能课税原则。第六章分析认为,纳税人平等意义上的税收公平原则并不当然表现为量能课税,而更可能是形式课税,即按抽象人格平等课税。量能课税首先是技术性的实质课税原理和财富再分配的社会理想的体现,其次才是现代税收实质公平的体现。这表明现代税收公平思想迎合了实质课税和财富再分配的要求。量能课税的税收公平思想要求按照表征负担能力的结果事实而不是前景事实分配税收负担。效率也是现代税法制度构造的一个价值诉求。第七章分析了公理性的税收效率原则。税收效率包括税收经济效率与税收程序效率。税收的经济效率,在早期指应当尽量减少征税所导致的市场效率的牺牲,在当代则更多地指通过税收上的制度安排,矫正市场失灵,以增进经济效率。税收上的制度安排,可以通过矫正经济活动的外部性、促进资源的合理开发利用、反对国际经济中的不正当竞争和调控宏观经济的运行,增进整体经济效率。文中分析了现代税法的经济干预目的及其法律实现机制。传统法律思想视效率为技术性的和形而下的,并且通过国家的经济干预增进整体经济效率本身会导致个人自由的萎缩,因而深受传统思想影响的现代税法理论并不认为效率是现代税法制度构造的基本原理之一。但现代税法被广泛运用于经济干预目的是一个不争的事实,问题不会因为我们不愿正视而不存在。本文视效率为现代税法的独立价值目标。税收的程序效率指以最小的成本付出实现税收。不仅程序税法,实体税法的制度构造也与税收程序效率有关。总之,现代税法的制度构造建立在某些基本原理之上。这些基本原理不仅说明了现代税法制度构造的形成原因,而且指示了其发展方向。这些基本原理包括技术性原理和公理性原理。技术性原理代表税法中的工具理性,公理性原理代表税法中的价值理性。技术性原理是由税法的实质法特质决定的。现代税法的理论探索,仅仅在本体论意义上讨论税收正义问题是远远不够的。更多还原

【Abstract】 The primary goal of this dissertation is to fully understand the structure of modern tax law. Historically, or between nations, there exist many differences of tax system. Only positive analysis is not enough for interpreting the structure of modern tax law. We need to penetrate into the fundamentals (or basic principles) which sustaining the system structure of modern tax law, to explain the system structure how to be formed and to clarify it’ development trend. The fundamental of modern tax law involves technological and axiomatic basic principle. Technological principle represents instrumental rationality and axiomatic principle represents value rationality existing in tax law. The theory of modern tax law wants to discuss, in terms of ontology, tax justice such as the principle of taxing in accordance with statute-the formal justice of the tax-and principle of tax fairness-the substantive justice of the tax, so intentionally refuse and look down to the instrumental rationality existing in tax law. But tax law is substantive law, it’ all rules and systems have their direct goal, include basic revenue purpose, and economic interference purpose such as wealth redistribution, correct the externality of economic activities, macroeconomic regulation and so on, so it certainly demand all rules and systems are effectiveness to the legislative purpose of the tax. This is the instrumental rationality existing in tax law; it is decided by the substantive goals of tax legislation; it is the problem of whether the rules and systems as means are effectiveness to the goals. The essence of substantive law of tax law decides that technological principle is significant principle in the system construction of modern tax law. Technological principle decides means are whether effectiveness to goal, indicates the objective connection between things, and is the things science judgment, not value judgment. Technological principle based on objective fact, is associated with reality of society. But technological principle can not make the tax law justification; justification comes from axiomatic principle, so axiomatic principle is also significant principle in the system construction of modern tax law. Axiomatic principle is related to value judgment. The relationship between technological principle and axiomatic principle may be viewed as that technological principle is the bottom principle of the modern tax law, and axiomatic principle is based on the technological principle. The theory of modern tax law which only discusses tax justice in terms of ontology is distorted and incomplete.The system structure of modern tax law is based on corresponding social foundation and some basic conceptions. Chapter one is beginning with analyzing the social foundation of the tax system of ancient agricultural society, with the purpose of, by historical comparison, making it clear that social reality is crucial to the construction of tax system, and the developing tendency of the tax system. The ancient tax system based on agricultural society, main part is land tax, companion with levying manual product and labor in line with population. As productivity grows, capitation tax is gradually merged into land tax. The modern tax system is based on modern industrial society and market economy. It’ significant parts are income tax and VAT. It’ goals developed, from simply revenue purpose to the purpose of economic interference. Modern economics and philosophy of rationalism and humanism as well as the thoughts about rule of law becomes basic concept of modern tax law.Tax law is substantive law, all the rules and systems have it’direct goal. The rules and systems are nothing but the means to achieve the intended destination. So it is necessary to consider the effectiveness of the means for the purpose when we construct our whole tax system. This is the technological principle or instrumental principle existing in the tax law. It demands the function of the tax system is coordinated with each other. Using structural and functional analysis method is necessary to clarify the technological principle in the system construction of modern tax law. To achieve the revenue purpose and the economic interference purpose, modern tax law structurally develops to two significant parts: substantive tax law and procedural tax law which respectively have it’ specific function. Chapter two will analyze the system structure and it’ function of the substantive tax law. The main function of substantive tax law is to decide under what conditions the tax liability comes into being. The system structure of the substantive tax law include conditions which make the tax liability (or tax debt) being existence, namely the constitutive requirements of tax. These conditions include taxpayer, tax object, the attribution of the tax object, tax basis and tax rate. This chapter will analyze the significant of such conditions as constitutive requirements of tax. In addition, the substantive tax law logically includes the system of tax inheritance and tax concession as well as punitive system. All of these systems have their specific function or significance in achieving the revenue purpose and economic interference purpose of modern tax law.Chapter three will analyze the economic substance doctrine of tax law. The economic substance doctrine represents the technological principle rather than axiomatic principle existing in tax law. The economic substance doctrine is derived from the revenue purpose of the tax. It indicate that, the tax law should capture the economic source of taxation by the words be used then make it as the tax object, make the person to whom the interest of the tax object belongs as the taxpayer, the cause in fact from which the tax object derived does not affect tax. The economic substance doctrine demands, interpretation of tax law should be in accordance with it’economic substance rather than it’form. The economic substance doctrine has anti-tax avoidance function strongly. But the economic substance doctrine is possibly letting the constitutive requirements become a mere formality, so should limited by the principle of no taxation without law. The economic substance doctrine is not only the basic principle of the system construction of substantive tax law, not only the basic principle of tax law interpretation, but also the basic principle of fact judgment, that is, necessary to consider the economic significance of the fact (or evidence), so should also apply to the procedural tax law.In modern industrial society, there exists a phenomenon of serious asymmetry about the information of the tax constitutive requirements fact between the tax authorities and the taxpayer. This phenomenon gives rise to the emergence of the procedural tax law. The basic function of the procedural tax law is to decide the fact, to decide the tax amount and to realize the tax. Chapter four will make it clear that the taxpayer’s information reporting liability through mainly tax returns filing, and the tax authorities’investigation power which aimed at collecting the tax constitutive requirements fact, all these arise from the demand to decide the fact. The general tax procedure of modern tax law may be divided into two models:the self-reporting tax procedure and power-based tax procedure, both of it include the procedural steps such as tax declaration, decision of tax amount, tax payment, and compulsory enforcement. In the self-reporting tax procedure the taxpayer has some autonomy, so the tax returns have legal effect to decide the tax amount. The power-based tax procedure is controlled mainly by tax authorities. The special tax procedures of modern tax law include withholding at source and revenue stamp payment method. Because the taxpayer’s declaration liability is exempted, so the special tax procedure is simplified procedure. During the tax liability to be performed, or at the time which is after the tax liability being existent and previous to it being nonexistent, to prevent the government’s tax interest from being harmed by taxpayer’s act, the modern procedural tax law stipulate for some systems in to safeguard the government’s tax interest.Technological principle does not give the tax law justification, so it should be filtered by axiomatic principle. Axiomatic principle represents value rationality existing in tax law. One of the axiomatic principles is the one about the formal principle of tax justice, the principle of no taxation without law. The principle of no taxation without law reflects the thoughts about rule of law. Chapter five will analyze the content of that principle and the other question related to it as well as the puzzles caused by that principle in modern society.The other one of the axiomatic principle is the one about the substantial principle of tax justice, the principle of tax equity. This principle comes from the equity principle of constitution. The principle’s core content is to distribute tax burden in accordance with everyone’s economic ability to pay tax, namely, ability to pay principle. Chapter six deem that, tax equity is not certainly embodying in ability to pay principle, it more probable requires tax in accordance with form, tax equitably based on abstract personality. The ability to pay principle embodies initially the technological economic substance doctrine and the social ideal of wealth redistribution, and then embodies the requirement of tax equity. In fact, modern tax fairness thoughts cater to the requirement of economic substance doctrine and wealth redistribution. The ability to pay principle requires distribution tax burden in accordance with current occurring fact which indicating taxpayer’s economic ability to pay, rather than prospective fact.Efficiency is one of the values to which the system construction of modern tax law pursued. Chapter seven will analyze the axiomatic principle of tax efficiency. Tax efficiency includes tax economic efficiency and tax procedural efficiency. In the early days, tax economic efficiency referred to it should be to minimize the loss of the market efficiency which arises from taxation. At the present times, tax economic efficiency also refers to enhance the efficiency of the whole economy through correcting the market failure by institutional arrangement of tax. The institutional arrangement of tax can enhance the efficiency of the whole economy through correcting the externality of the economic activities, urging reasonable exploitation of the natural resources, opposing illicit competition in international trade, and macroeconomic regulation. Chapter seven will analyze the economic interference purpose of the modern tax law and its legal realization mechanism. Traditional legal thoughts viewed that efficiency technological and non-metaphysical, that to enhance the efficiency of the whole economy through the government’s economic interference will lead to restriction of the personal freedom, so the theory of the modern tax law generally does not view efficiency as the basic principle of the system construction of the modern tax law. But undoubtedly it is a fact that modern tax law is widely used to economic interference purpose. The problem will not be nonexistent only because we ignore it. We should view efficiency as an independent value of the modern tax law. Tax procedural efficiency refers to realizing tax at minimal costs. All the system constructions, both procedural tax law and substantive tax law, are related to efficiency.In summary, the system structure of modern tax law is based on some basic principles. These basic principles are the cause in forming the system structure of the modern tax law, indicate its developing trend. These basic principles include technological and axiomatic principle. Technological principle represents instrumental rationality and axiomatic principle represents value rationality existing in the tax law. Technological principle is decided by the essence of substantial law of the tax law. It is quite not enough that the theory of modern tax law only discuss the taw justice in terms of ontology.更多还原