【作者】 王维高；

【导师】 丛中笑；

【作者基本信息】 吉林大学 ， 法律， 2009， 硕士

【摘要】 相对于其他国家权力,行政权最具有扩张性和滥用性,因而行政执法风险也最大。税务机关作为国家重要的行政执法部门,在进行税收管理、税款征收、税务检查、税务处罚等活动中依法享有大量的执法权。近年来,围绕实施税收科学化、专业化、精细化管理的要求,税务机关在税务管理活动中开始引入风险理念,以规避税收执法风险,但目前的理论研究还不够深入全面。本论文采用实证分析、法理分析和人性分析相结合的方法,从税收执法风险形成的原因及具体表现形式进行分析,提出了相应防控税收执法风险的对策,希望能对税收执法工作起到一定的警示和借鉴作用。本论文首先从依法行政理论、风险管理理论入题,导出税收执法风险的基本内涵、风险种类,指出防控税收执法风险的现实意义。其次,在从税法体系、征纳环境、征管体制、监督机制等宏观方面和税收执法风险表征等微观方面两个角度,对我国税收执法风险的现状进行了实证分析,之后又从影响税收执法风险的政策、内部和外部环境等现实因素方面和自由裁量权的事实、立法权和司法权制约的缺陷、纳税人权利制约软化等法律机理方面,以及通过对人的逐利性的揭示等,由浅入深地探析了税收执法风险的内在成因。再次,还引入国外防控税收执法风险制度的借鉴。最后,从重塑税收法治理念、健全税法体系、完善执法风险内控机制、限制执法自由裁量权、健全纳税人权利体系、强化税收执法监督等方面,为防控税收执法风险提出了若干对策建议。更多还原

【Abstract】 Taxation is a basic tool for a country to raise funds, regulate economy and adjust distribution. The goals of taxation are to standardize enforcement, upgrade taxation rate, lower cost and satisfy the society, among which the taxation is the first standard and also the precondition of implementation of other goals.Illegal activities and misfeasance in taxation execution lead to the loss of taxes, reconsideration and lawsuit of taxation administration, and tax stuff’s violation of laws, which restraint the effectiveness for the function of taxation. From the aspect of taxation execution goals, this paper studies prevention and control in risk of taxation execution. The paper adopts methodology of positive analysis, jurisprudence analysis, and humanization analysis. Besides, the paper presents the causes of current risk of taxation execution. Then it gives some constructive suggestions on how to effectively prevent and control risk of taxation execution from the perspectives of equal party, improvement of taxation laws, and balance of rights.In particular, the following six parts are stated in the paper:Part 1 is the introduction, mainly discussing study methods, ideas and practical significance of prevention and control in risk of taxation execution.Part 2 is the summary of risk of taxation. First, it reveals the existence of risk of administration law enforcement and necessity of prevention and control of risk through administration theory and risk management theory. Second, it discusses the concept and characteristics of taxation execution rights which then are divided to six sub rights. According to the internal relation between administration behavior and harmful consequences, legal consequences resulted from risk of taxation execution can be classified into two types: administration responsibility and criminal responsibility. Finally, the thesis puts forward the prospective goals of prevention and control in risk of taxation execution.Part 3 focuses on current situation and reasons of risk of taxation in China. First, the thesis observes current situation of risk of taxation execution. From the perspective of taxation execution environment, it analyzes taxation system, taxation environment, taxation management system and supervision mechanism, lists eight types of risk of taxation execution. Then it figures out the negative consequences of taxation administration reconsideration, administration lawsuit, administration compensation, enforcement responsibility, and damaged taxation image. Second, the thesis analyzes the reasons of risk of taxation execution in detail. For practical factors, it includes policy, internal management, and external environment. According to law mechanism, affirm the existence of administration discretionary, and defects of administration rights balanced by legislation and jurisdiction. Then it summarizes the features of taxpayers’resistance to taxation execution and deeply reflects the lack of protection of the taxpayer’s rights. On pursuing benefits, the thesis unveils the inevitability of taxation execution transferring. From the above analysis, the thesis proves the objective existence of risk of taxation execution, and the risk should be well understood and be reduced.Part 4 is the analysis and implication of prevention and control system in foreign countries. Wide-ranging internal and external supervision systems are established to guarantee the control in risk of taxation execution. For external supervision, it includes legislation supervision, audit supervision, justice supervision, administration judge supervision, intermediary supervision, taxpayer supervision and media supervision. For internal supervision, it consists of supervision between stuff members, work shift system, informationization control, improvement of tax stuff and scientific taxation plan. After that, the thesis presents implications to domestic prevention and control in risk of taxation execution.Part 5 is the methods of improving domestic prevention and control in risk of taxation execution. It proposes six aspects from different angles, such as philosophy, measures, legislation, internal and external, and so on. The first is to rebuild the orientation of the rule of law and advocate equality and balance of rights. The second is to improve taxation law system, including establishing country-situation-based taxation law frame, boosting up legislation systematization, and upgrading taxation legislation quality, to provide convincing support for the prevention and control. The third focuses on the taxation department, suggesting of internal improvement of prevention risk. It gives risk recognition, risk evaluation, risk management and so on.The fourth implies reducing authorization, refining enforcement standards, taxation publication and reasons specified in reality. The fifth concentrates on the opposite side of administration. It advises improvement of taxpayer’s rights system in order to balance taxation execution rights. The key is to enlarge taxpayers’procedure rights, perfect taxpayers’organization to promote taxpayers’self–guidance awareness. The sixth starts from the weak aspect of taxation execution, emphasizes the censor of legal files, supervision of enforcement, improvement of enforcement mechanism.Part 6 is the conclusion. From the above analysis, the paper stresses building ideas of equality and awareness of risk of taxation execution. Required by the economic development and taxation task, building scientific prevention and control in risk of taxation execution should be established to meet the challenges of taxation. In the mean time, it presents a picture of further study in this field.In conclusion, risk of taxation execution is a long-time existed problem in taxation management. The fundamental reason is the existed fact of discretionary power which is allowed in law. The practical reason is that speed of economic and societal development surpasses the current situation of taxation management. Taxation execution faces more and more challenges, which means risk of taxation execution can not disappear automatically. However, it doesn’t mean we have no ideas to prevent it. Practice has shown that improvement and innovation of systems are an effective way. Therefore, the main tasks are to improve the whole system and strengthen measures to keep the risk of taxation execution in a lowest level. That is the real value of study on prevention and control in risk of taxation execution.更多还原