【作者】 马福军；

【导师】 刘剑文；

【作者基本信息】 西南财经大学 ， 人口学， 2011， 博士

【摘要】 劳动权的实现关系到公民的生存权和发展权,劳动权保障是一个宪政问题,也是一个民生问题。在今天这种利益多元化、社会急剧转型、贫富差距进一步加大、生活成本日益提高、就业形势日趋严峻的情况下,如何更好地实现对劳动权的法律保护,成为考量当政者智慧和立法选择的重要指标。劳动权是一个内容、体系甚为庞大的权利束,涉及多种权利,既有劳动者人身方面的权利,也有劳动者财产方面的权利,本文着重从劳动权与征税权冲突的领域进行研究,对征税权进行法律规制,由此形成劳动权的税法保障。劳动权既包括劳动报酬权、就业权,也包括社会保障、教育等财产权利内容；既要通过市场竞争去优化个体权利,也需国家通过政府调控去达到资源的优化配置。而目前,对劳动权的保护,无论是公司法、劳动合同法还是物权法,都主要是基于私法领域的保护,法律体系也不尽完善。除宪法对劳动权进行宣示性确认外,公法领域对劳动权的保护还相当薄弱,特别是有着半壁财产法之称的税法对劳动权的保护相当有限,所以从税法的角度去研究劳动权的保护甚为必要。劳动权的税法保障是劳动法与税法的交叉学科领域,在劳动报酬权(包括股票期权所得)、就业权、社会保障权、教育培训权等财产性权利方面,劳动权与纳税人权利存在多重权利交集,用税法的法规范性去保护劳动权,特别是通过对税法体系的完善达到对劳动权的保护是一个新的尝试,尚属首例,也具有重要的现实意义。从根源上探究,国家征税权的确立,使得劳动者必须无偿将其部分劳动成果让渡给国家,这实际上已经隐含了对劳动者财产权利一定程度的干预与限制,征税权与劳动权之间必然存在无法回避的紧张关系。但对社会整体而言,税收直接关系到公民必须的公共产品和服务,税收具有社会整体利益性。如何处理税收之公共利益与劳动权之私人利益,涉及一国宪政理念。现代国家都是租税国家,我们应该从宪政的角度,用税法去分析劳动权的保障,而不仅仅局限于私法领域。公共财政“取之于民,用之于民”,征税权固然是对劳动权的干预与限制,但基于基本人权的保障,税收的终极目的是保证“所剩余的自由与权利的安全并能够快乐的享受自由与权利”。因此,在宪政基础上,征税权与劳动权是协调统一的。税法具有公权力之强制性,税法对劳动权的侵害比私法侵害的后果更为严重,这也是我国现在积极推进劳动权的税法保护的重要原因。在劳动权的保护顺位上,私法保护是积极的,处第一顺位；税法保护是消极的,处第二顺位。人权保障是财税法构建的基石,也是赋税法律制度正当性的根本价值基础,因此,建立私法和税法的双重保护,是基于人权保障的宪政要求,也是劳动权保障的必然选择。劳动权的实现是宪法和法律所确认的劳动权转化为现实中具体的权利,而劳动就业、权利意识和国家公权力的保障及国家责任是劳动权实现的基本条件。劳动权的实现需要经历劳动力生成与维持、劳动价值的创造、劳动能力提高与价值上升等过程,这个过程中,税收负担能力与征税界限直接关系劳动权的实现程度。国家的财富都是人民通过劳动创造的,国家财政的来源主要是税收,劳动权的实现是国家税源维持的关键。因此,在依法治税的国家,税收国家是劳动权保障的逻辑起点,社会新增价值为税收负担能力的评价基础,劳动权保障为国家税源维持的基础,对劳动所得的征税需要保持过度禁止的界限,避免过度征税侵害个人及家庭的生存权。劳动权的本质属性是自由权与社会权的统一,作为自由权的劳动权是对国家征税的自我限定,对劳动就业权的干预需要税法保持税收中立,尽量减少对经济自由的干预；而作为社会权的劳动权需要国家征税权的积极行使,创造就业机会又需税法发挥宏观调控作用,税法的宏观调控应尽量保持市场对公平与效率的追求。根据马克思的劳动力价值理论,.自然人要成为具有劳动能力的劳动力,需对劳动力的生成与维持投入资源,包括人之生存所耗费的资源、人之发展所耗费的资源和人之社会关系所耗费的资源。从资源投入的主体来看,包括个体、企业,还有国家。从资源投入的内容来看,有家庭生活费、工资薪金、教育培训费、社会保障投入等。根据税法对可税性理论的诠释,对劳动力生成与维持的费用征税不符合量能课税标准、正义标准和人权保障,因此,劳动力生成与维持的费用不具有可税性,个人与家庭生活消耗费用应作为课税禁区,企业投入的劳动力维持成本应该在税前扣除,国家对劳动力投入的资金不应作为征税收入。劳动力通过劳动才能创造社会价值,而劳动报酬是社会对个人价值的回报,也是个人生存和发展的物质基础。作为劳动权核心的劳动报酬权与国家征税权是相冲突的,国家征税将减少劳动报酬的税后收入,如果对劳动报酬过度征税,将损害劳动报酬权的完全实现。但从人的基本人格和尊严的保护来看,征税权与劳动报酬权能够在终极价值上得到协调。而税法就是通过法律确认征税的界限,平衡国家税收与个人收入的自由空间,限制国家征税权力过度介入劳动报酬和个人基本生活,限定国家只能在合理和合法的范围内对劳动报酬征税。对劳动报酬征税禁止过度,要遵循净所得和生存权保障原则,个人和家庭的基本生活费用应当扣除,低于最低生活费用的收入不属于征税范围。但过度禁止并不能完全保护劳动报酬和财产的自由范围,比例限制和半数原则是税法领域对征税权限制的刚性标准,也只有这样,才不影响劳动者的生产积极性,才不影响经济发展和国家税源。根据税收债务构成理论,国家对非法收益应当征税；加班费与劳动补偿应当征个人所得税；福利费因具有个人所得与费用的特殊性,应当运用可税性理论进行具体分析。随着劳动权的发展,人力资本产权作为新型的劳动权形式,促进了经济的发展,越来越受到国家的重视,对人力资本产权如何征税和进行税法保护,是政府和立法者面临的问题,本文以股票期权为例,通过对宗庆后涉税案件的实证分析指出,股票期权所得具有工资属性和资本属性,人力资本的收益已从传统的以工资收益为主转向了分享企业剩余收益为主,但由于目前的征税模式过于简单,损害了劳动者的劳动权益。税法是国家调控宏观经济的重要手段,那么,建立税法对劳动权的保障机制十分必要。根据劳动就业的自由性和税收的中立性,税法干预劳动就业应该受到限制,防止市场行为受到税收扭曲而伤害经济的发展。同时,根据劳动就业的社会性,从税法的宏观调控功能出发,税法干预和促进就业有其必要性,因为税法能够创造平等的就业机会和保障弱势群体的就业机会,税法通过税收诱导能够创造更多的就业岗位,能够保障就业援助权的实现,税收优惠能够促进就业安全。即便如此,国家以税法调整劳动力市场,也应当符合公共利益原则和比例原则,以保证税法的合理性和合法性。通过反思劳动权的税法保障制度,笔者认为我国的税法存在层级过低等诸多问题,以行政规章为主导的劳动权税法保障体系与我国劳动权的宪政要求不符,为以行政规章为主的劳动权税法保障体系易诱发政策性风险；税收基本法缺位、社会保障税法和教育税法缺失,劳动权的税法保障体系还不完整；偏重的宏观税负造成对劳动报酬权的过度侵害；现行的九级累进税率、分类征税模式、费用扣除制度加重了劳动者的税收负担,资本所得的过度优惠形成对工作自由权的干预,非工资形式的劳动报酬的税制不合理等均构成劳动权保障的不足。笔者建议对劳动权的税法保障体系进行完善,从税收法定主义和量能课税的立法原则出发,先开征单行税种和制定单行税收法律,制定社会保障税法和教育税法,构建以社会保障税为核心,开征教育税,完善现有的所得税等法律制度,建立完善的劳动权税法保护体系,以期实现劳动权的私法与公法的完整的法律保护体系,从而实现税法对劳动权的保障。依法治税是宪政国家的基本要求,在我们追求税收宪政的路途中,以劳动权保护为核心的纳税人权利制度都应该在宪法的统领下以税收法律明确规定,并让普通民众积极参与税收立法工作,把影响民众自身自己生存和发展的就业权利、劳动报酬权利、社会保障权利、教育培训权利、健康和安全权利写入税法,在税法中确立劳动权的制度保障。所以,重新审视普通民众在税法领域的立法参与权也是宪政的根本出发点和落脚点,也只有这样,转型中的社会矛盾和民生问题才能得到根本解决。更多还原

【Abstract】 Labor rights concern citizen survival right and development right, labor rights protection is not only an issue of constitutionalism but also an issue concerning people’s livelihood. Regarding the current situation of interests diversification, rapid transition of society, widening gap between rich and poor, rising cost of living and a tough job market, it is a question for those in power how to realize a better legal protection of labor rights.Labor rights are a bundle of rights with huge contents and systems, concerning not only personal rights but also property right of labors. The thesis research focuses on the field of conflict between labor rights and taxation rights, establish legal regulation on taxation rights, thus form the tax law protection for labor rights. Labor rights include reward rights, employment rights, social protection rights, education rights, etc., which needs both market competition to optimize individual rights and State governmental adjustment and control to optimize resource distribution. At present, all the labor rights protection, no matter company law, labor contract law or family property law, are all mainly based on private law protection, with fairly complete legal system. Public laws are relatively weak in labor rights protection especially tax law which is called a half family property law, its protection for labor right is quite limited. It is necessary to study labor rights protection from tax law aspect. Tax law protection for labor rights is an interdisciplinary academic subject for tax law and labor law. Labor rights and tax payer rights have many overlapping in property nature rights such as labor reward rights (including income from stock options), employment rights, social protection rights and education and training rights. It is an innovation and unprecedented for labor rights being protected by legal regulation of tax law, especially labor rights protection through tax law system optimization is the first case and with important practical significance.Explore from the source, worker must give a part of his product to the country free of charge based on national taxation right, which already imply certain interference and limitation of labors property rights. Thus taxation rights and labor rights must have tensions unable to avoid. But for the whole society, taxation directly concerns citizens obliged public product and service, thus taxation has the characteristic of social general interests. How to treat public interest of taxation and private interests of labor rights involves a country’s constitutional philosophy. Contemporary countries are all taxation countries, we should analyze labor rights protection from the aspect of constitutionalism rather than only confined in private law field. Public treasury emphasis "Taken from citizen and used in citizen", taxation right is interference and limitation of labor rights, but based on basic human rights protection, the final goal of taxation is to guarantee "safety of remnant freedom and right and can enjoy freedom and right happily". Therefore, taxation rights and labor rights are coordinated and unified based on constitutionalism. Tax law has the binding characteristic of public law, thus the infringement by tax law to labor rights is more serious than infringement by private law, which is the weakness of current labor rights protection situation of stressing private law while ignoring tax law. On order of labor rights protection, private law protection is positive and in first place; tax law protection is passive and in second place. Human rights protection is the corner stone of finance and tax law, and also the value base of justice of taxation legal system. Therefore, establishment of dual protection of private law and tax law is both based on constitutionalism requirement of human rights protection and.necessary choice of labor rights protection.Realization of labor rights means transformation of labor rights to substantial rights real in life set by Constitution and laws, while the guarantee of labor employment, right awareness and national public rights and national obligations are prerequisite of realization of labor rights. The process of realization of labor rights needs generation and maintenance of labor, creation of labor value, improvement of labor capacity and rise of value, etc. During this process, tax affordability and taxation limit directly link with the realization degree of labor rights. National wealth is created by people’s work, the main national financial source is taxation, and the realization of labor rights is the key of maintaining national tax source. Therefore, in countries of governing taxation by law, the guarantee of labor rights by tax law is the logical starting point of taxation country, social newly created value is the evaluation base for tax affordability, labor rights guarantee is the base of national tax source maintenance, the taxation for the labor should maintain prohibitation of over taxation to prevent infringement of survival right of the private and family. The unification of the essence of labor rights and freedom right and social right, labor rights as freedom right is the self-limitation to national taxation, the interference of labor employment requires tax law keep neutral, reduce interference on economy freedom to the minimum; while labor rights as social right requires the positive implementation of national taxation right, creation of employment needs tax law play the role of macro adjustment and control, thus the macro adjustment and control by tax law should keep the market pursuit of justice and efficiency.According to Marx’s labor value theory, a natural person becomes a labor with ability to work, which needs invest resources for its generation and maintenance including the resources consumed by person’s survival, development and its social relations. From the aspect of resource investment subject, there are family living cost, salary, education and training fee, social guarantee investment, etc. According to the explanation of Taxability Theory by tax law, taxation on labor generation and maintenance is not in accord with the standard of taxation based on ability, justice standard and human right protection, therefore, the expense of labor generation and maintenance do not have taxing possibility, and private and family living consumption should be forbidden zone of taxation. Investment of labor maintenance cost by enterprises should be deducted before taxation, labor investment by the country should not be regard as taxation income.Labor can only create social value by working, work payment is the payback by society to private value and also the material basis for private survival and development. Author holds that labor payment right as the core of labor rights is in conflict with national taxation right, national taxation will decrease income after tax, over taxation on labor payment will injure realization of labor payment right. But considering from basic dignity of human personality protection, taxation right and labor payment right can be coordinated in ultimate value. Tax law balance free space of national taxation and private income, prevent national taxation right over interfere into basic personal life, limit the country can only levy tax when it is correct under both reason and law. Taxation on labor payment should comply with net income and survival right protection principle, personal and family basic living cost should be deducted, income lower than lowest living cost is not within the scope of taxation. But prohibition of over taxation can not fully protect free scope of labor payment and property, principle of proportionality and majority principle are the binding standard for taxation permission in tax law, only by that, labor’s motivation can not be damaged and economic development and national tax sources can be maintained. According to tax debt structure theory, country should levy tax on illegal income; overtime pay and labor compensation should levy individual income tax; since welfare benefits has the particularity of individual income and cost, it should be analyzed using taxability theory.With the development of labor rights, property rights of human capital as a new form of labor rights promotes economic development, thus cause more and more State attention, how to tax and protect property rights of human capital is a new problem for government and legislators. Author takes the example of stock option, takes the case study of Zong Qinghou taxation legal case and points out that income by stock option has the characteristics of salary and capital, human capital income has already transformed from traditionally based on salary to based on sharing of surplus interests of enterprises, but current taxation pattern is too simple and harms labor rights and interests.Tax law is an important measure of national macro economic adjustment and control, how can tax law establish system for labor rights protection? In light of labor employment freedom and neutralism, tax law interference on labor employment should be limited to prevent market action being damaged by distorted taxation thus harm economy development. Meanwhile, in light of the socialism of labor employment, regarding the macro adjustment and control function of tax law, tax law interference and improvement of employment is necessary, since tax law can create equal employment opportunity and guarantee employment opportunity for the vulnerable group, tax law can create more employment post through tax guidance, can insure the realization of employment assistance right, and tax preference can improve employment safety. Even so, the State adjusts labor market by tax law should imply with public interest principle and proportion principle, to insure rationality and validity of tax law. Through reviewing labor rights protection system by tax law, author holds that our country tax law is suffering from the problems such as low hierarchy, the current labor rights protection system of tax law oriented by administrative regulations is not accord with our country’s labor rights constitutionalism requirements, since the administrative-regulation-oriented labor rights protection system is likely to cause policy risks. Lack of basic taxation law, social protection tax law and education tax law, tax law protection system of labor rights is not complete; rather heavier macro taxation burden cause over infringement of labor payment rights; current 9 grade graduated tax rates, classified tax pattern, expense deduction system increase the labors taxation burden, over preference of capital income becomes interference to work freedom right, irrational taxation system for payments of non salary form constitutes deficiency of labor rights protection. Author suggests that tax law protection system of labor rights should be optimized, starting from statutory taxation principle and ability theory of taxation, first levy slip tax and formulate slip tax law, formulate social protection tax law and education tax law, establish complete labor rights tax law protection system to realize a complete legal protection system both from private law and public law, thus realize tax law protection for labor rights.Author holds that taxation according to law is the basic requirement of constitutional countries, in the pursuing path of constitutional taxation, tax payers rights and systems centered in labor rights protection should be clearly set in the taxation law leading by Constitution, and let the public actively participate in taxation legislation, let them write those rights influence their living and development in tax law such as employment right, work payment right, social protection right, education and training right, health and safety right, thus establish systematic protection for labor rights in tax law. In general, reviewing average citizens participation right in taxation legislation is both the basic starting point and standing point of constitutionalism, only in this way, social contradictions and people livelihood in transition can be solve fundamentally.更多还原