【作者】 詹清荣；

【导师】 张文显；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 博士

【副题名】以税收征管和公共服务的制度博弈为逻辑分析主线

【摘要】 公共财政制度是确定政府和社会成员之间根本利益分配的核心制度,其宗旨是规范政府与社会成员在分配领域的利益安排和双方由此发生的权利义务关系。政府行使税收征管权和向社会成员提供公共服务是公共财政的主要内容。在深化经济体制改革和构建社会主义和谐社会的时代背景下,推进中国公共财政制度转型和完善势在必行,而对中国公共财政制度转型和完善进行整体性、基础性的法理研究是我们应予承担的重大学术使命。本文在梳理和扬弃西方公共财政理论的基础上,应用交易成本分析方法、一般均衡理论分析方法仔细分析政府与社会成员在税收征管和公共服务之间发生的法律关系,紧密结合中国公共财政的具体实践和社会现实,创新性地提出“秩序正义”作为建构中国公共财政制度体系的核心价值,并以此出发明确了公共财政制度完善中应予重点关注的“三大均衡”,将制度性“收支均衡”作为公共财政收入和公共财政支出相关制度设计的制度结构目标。同时,创新性地提出“权力与责任”、“有序与无序”、“结构与功能”、“权威与信任”、“服从与救济”等五对范畴,作为中国公共财政法理体系的基础性理论范畴;提出“最低责任原则”、“刚性预算原则”、“税收公平原则”、“综合效率原则”、“差异平衡原则”、“成本控制原则”、“规范透明原则”等七项法律原则,作为中国公共财政法理体系的基础性法律原则。在此之上,本文鲜明地提出有限政府和公共服务均等化是对中国公共财政的法治要求。更多还原

【Abstract】 The public finance system is the core system to determine the fundamental interest distribution between government and social members, aiming at regulating the interest arrangement in distribution between them and the right-duty relations arising there- from. It is the major content of public finance that the government performs the tax collection power and provides public service for social members. In the context of deepening the reform of the economic structure and constructing a harmonious socialist society, it is imperative to transform and improve the Chinese public finance system , thus it is an essential academic mission that we should undertake to conduct comprehensive legal research on the transformation and improvement of China’s public finance system.Based on combing out and sublating western public finance theories, this dissertation applies the static analysis of transaction cost and approaches of general equilibrium analysis to anatomize the legal relationship between government and social members in taxation and public service, integrate tightly the concrete practice with the social reality of Chinese public finance, creatively put forward the“justice of orderliness”as the core value to construct the Chinese public finance system, on this basis, make clear the“three equilibriums”in the improvement of public finance system, and take the“revenue-expenditure equilibrium”as the institutional goal of relevant system design in public finance . Meanwhile, this dissertation creatively puts forward the five pairs of categories of“power and duty”,“order and disorder”,“structure and function”,“authority and trust”and“obedience and relief”as the fundamental theoretical categories of the legal framework for Chinese public finance; proposes seven legal principles of“the lowest responsibility principle”,“rigid budget principle”,“fair tax principle”,“principle of overall efficiency”,“difference balance principle”,“cost control principle”and“transparent rule principle”as the cornerstone legal principles of China’s public finance.The main logic line of the specific demonstration in this dissertation is:The subject of Chapter 1 is“combing out the clues in public finance theories”, making the cognitive preparation for the legal analysis of Chinese public finance system. This chapter mainly clarifies the clues in western public finance theories”.As for the public finance expenditure theory, it principally combs out the major viewpoints of relevant representatives in classical economics, vulgar economics, social policy school, Keynesian school, Neo-classic Synthesis School,Neo-Cambridge school, monetarism school and supply school.As for the fair tax theory, it focuses on the relevant viewpoints of British Thomas Hobbes, John Locke, William Petty, Adam Smith, Say, Mill, Wagner, Pigou, Samuelson, Musgrave and Buchanan. And as for the tax efficiency theory,it focuses on the major viewpoints of Adam Smith, Marshall, Pigou, Laffer and Buchanan.With regard to western public goods theories, it principally combs out the relevant viewpoints of the Austria-Italy school (leading exponents are Sax, Panteleoni and Marco), Swedish school (leading exponents are Wisksell, Eugen von Bǒhm-Bawerk and Lindale), Musgrave and Samuelson.In the self-refletion and review of Chinese public finance theory, it mainly sits in evaluation over state property theory, dual financial theory, generalized financial theory and public financial theory, and summarizes and appraises the status of legal studies on public finance.The subject of Chapter 2 is the“institutional characteristics and cost structure in public finance”, aiming at demonstrating the institutional characteristics and cost structure in public finance through applying the transaction costs methods in neoinstitutional economics. The financial mode is classified into three types of family budget finance, plan finance and public finance in the institutional characteristics of public finance, drawing on the experience of the three functional theories in public finance by Musgrave, namely allocation function, distribution function and stabilization function, and proposes that tax collection power is the direct and institutional guarantee for national financial revenue. The dissertation creatively proposes the fourfold legal relationship implied in the behaviors of tax collection and public service of government from the viewpoint of“right-centered theory”: 1. the relationship between power and obligation in tax collection power and public service of government (power and obligation); 2. the relationship between the tax collection power of government and social members (refers to those who have tax duty) performing the tax duty (power and duty); 3. the relationship between the tax duty of social members (refers to those who have tax duty) and the rights to require the government to provide public service (duty and rights); 4. the relationship between the obligation to provide public service for social members and the rights to require the government providing public service (obligation and rights). And then it puts forward the potential problems of“obligation absence”in providing public service by the government and“rights absence”in requiring government to provide public service by social members.In the cost structure of public finance, through explorating the relationship between governmental functions and administration cost unit,this dissertation proposes that defining the cost unit in the income and expenditure behaviors of public finance is the fundamental work to analyze the efficiency of public finance system ,and the gross amount of public expenditure could be increased indirectly by controlling the administration cost of government. Taking advantage of the transaction costs method, it proposes the proposition for cost control in public finance, enhances the quality and efficiency of public finance institutional design using the institutional capital of neoinstitutional economics, analyzes and investigates the influence on institutional design by government agency costs in public finance structure, the compliance costs of taxpayers and transaction system of zero transaction costs in depth, and puts forward that the cost control to the each phase in the public finance cost is the effective means to enhance the institutional efficiency and economical efficiency.The subject of Chapter 3 is“revenue-expenditure equilibrium: the Important Index for the Improvement of Chinese Public Finance”, its principal objective is to promote the institutional design of Chinese public finance system to be in the dynamic equilibrium state between public revenue and public expenditure by using the general equilibrium analysis method, in order to settle the cost correspondence relationship between tax scale and public service content, and maximize the efficiency of public finance system.The dissertation creatively introduces the equilibrium analysis method into the demonstration of the legal foundation of public finance system. In order to make clear the composition of public finance revenue and expenditure, this dissertation discusses the principle constituents of public finance revenue and public finance expenditure, and then analyzes the deficit as a result of“expenditure is greater than revenue”using the equilibrium analysis method.In order to show the maneuverability for implementing financial equilibrium system, this dissertation discusses and analyzes the financial equilibrium system in the U.S., Germany and Australia. The U.S. exerts the Fiscal Federalism, namely the relatively independent financial system in the federal, the state and local government. The governments in three levels clearly divide their respective governance and financial power in accordance with American constitution. The legal basis of German financial equilibrium system lies in its federal constitution, namely Fundamental Law, Germany exerts the financial equilibrium system combined with vertical equilibrium and horizontal equilibrium, and the nation must keep the people’s living conditions in different regions accordant. The equilibrium in financial allocation is the characteristic in the Australian financial equilibrium system. The Australian constitution prescribes that citizens in every state possess of equal power in enjoying the public service. The three countries of the U.S., Germany and Australia all stipulate the financial allocation system in the constitution, and exert the constitutional finance. Juging from the three nations’practices, it is feasible to implement the equilibrium in the finance revenue and expenditure system based on constitutionality, as well as to enjoy the equilibrium in public service. Of course, China is a transforming nation, thus it requires a long time to implement the absolutely fair finance and tax system as a result of the differences in national conditions and level of constitutionality.The subject of Chapter 4 is“Theoretical Innovation and Development”, and is to study how jurisprudence should respond to and facilitate the implementation of the goal of public finance system , how to build up the legal value and new concept of legal thinking to promote the transformation of China’s public finance system and implement the goal of China’s public finance system through unscrambling the reality in China’s financial allocation and finding out its disparity with the goal of public finance system.The dissertation proposes“justice of orderliness”as the core legal value to construct Chinese public finance system. Firstly, the dissertation holds that the government administration and management cost, urban and rural difference and“three agricultural problems”, financial disparity in grassroots institutions and regional economy are the reality confronted when legal values are refined; secondly, it analyzes the connotation of justice , Rawls and Nazick’s justice theories and their social backgrounds being reviewed; thirdly, it analyzes the evolution of the concept of order, and introduces Cohen in Britain, Walter and Eucken in Germany, French physiocratic school and the theory of order in the western liberal economics. This dissertation refers to dissipativity structure theory as the scientific support for the order state research to reflect mastery of internal definition of order. This theory harmonizes effectively the academic conflict between the second law of thermodynamics and Darwin’s biology evolutionism. The entropy increase principle of the second law of thermodynamics believes that the entire universe will be changed spontaneously from order to disorder, finally achieving equilibrium, death as well. While Darwin’s biological evolutionism believes that direction of evolution is more and more complex and orderly from monad to human beings. According to the dissipativity structure theory, an open system far away from equilibrium state produces self-organization phenomenon in certain condition through exchanging the substance and energy with environment continually, namely from order to disorder and from the lower one to the higher one. Therefore, above this, the dissertation divides“order”into“order”and“disorder”.The dissertation extracts the“justice of orderliness”as the core legal value of Chinese public finance. It takes into full consideration from two aspects: the due value effect of core justice value and the inherent requirement of core justice value for the Chinese public finance system practice. The connotation of“order”in justice value is“to adapt to the developing practice of Chinese society, promote the formation and improvement of“fairness”in public finance, make the institutional design of public finance going under the rule by law, supply public goods with material system guarantee, and the social members can achieve the goal of equalization in public service”. This is the expected requirement for the“justice of orderliness”as binding the construction of China’s public finance system and integrated core legal value, its specific implementation modes are principally achieved through restriction of legal system, can be generalized into“three equilibrium”from the perspective of equilibrium of revenue and expenditure, namely gross equilibrium in public government revenue and expenditure, equilibrium of interests in public government revenue and expenditure ,and institutional equilibrium in public government revenue and expenditure.This dissertation creatively puts forward the five pairs of categories as the fundamental theoretical categories of the lagal framework for Chinese public finance, among which“power and duty”is to signify the legal relationship problems between the power of government in public finance arrangement and duty in public service (limitations on rights from power);“order and disorder”is to signify the institutional order requirement for the content of public finance system;“structure and function”is to signify the institutional design framework and institutional benefit problems in financial allocation, such as institutional efficiency, matching of the governance and financial power in financial system and equilibrium of regional differences,;“authority and trust”is to signify the authority of government in tax collection and public expenditure and the evaluation problems to the system arrangement of government form social members, is the requirement for government image;and“obedience and relief”is to signify the degree of social members’s obedience to government system and the right demands when social members are harmed by the government behaviors or the social members cannot obtain due public service, is the obligation and basic right requirement of social members.This dissertation creatively proposes“seven legal principles”as the cornerstone legal principles of Chinese public finance, among which“the lowest responsibility principle”is to bind the fundamental functions and public service duties to the society and social members undertook by the government;“rigid budget principle”is to regulate government revenue and expenditure , government administration cost and transfer sum payable which influence fairness and efficiency in public expenditure;“fair tax principle”is to summarize the fairness requirements of taxaction in China;“principle of overall efficiency”is to generalize how to make the public finance system exert its effect;“difference balance principle”exerts itself to facilitate the institutional balance of regional difference;“cost control principle”is the institutional requirements for controlling governance cost, social administrative cost and tax administration cost ;and“transparent standard principle”is the inherent requirements for the institutional design and administrative behavior in the public revenue and public expenditure .This dissertation clearly proposes that a limited government and public service equalization are the requirement of law in Chinese public finance.更多还原