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Tax revenue of China's criminal legislation compared with the improvement of criminal legislation_6068

By Jill Dunn,2014-10-31 19:46
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Tax revenue of China's criminal legislation compared with the improvement of criminal legislation_6068

    Tax revenue of China's criminal legislation compared with the improvement of criminal legislation

     Summary criminal legislation in the national tax revenue to compare and criminal legislation of China's current tax assessment on the basis of

    defects in our criminal legislation, the tax should be improved as follows: the abolition of tax evasion crimes enumerated type and amount of increase proportional legislative means, taken to list the amount of Canadian general type and style of stand alone mode; additional tax

    resistance crimes unit crime; additional tax agents Tax Evasion; for an invoice crime, according to the different patterns of behavior to build a law is amended to compression charges.

     In recent years, as China's market economy development and deepening

    of tax reform, tax crime intensified to reach an unprecedented. As well as March 15, 2001 the fourth meeting of the Ninth National People's Congress approved "The People's Republic of China National Economic and Social Development 10th Five-Year Plan," with particular emphasis on:

    "strengthening tax collection and management according to the law against theft, leakage, tax fraud behavior, discharging debts, is strictly prohibited by ultra vires-free, a tax rebate. "tax crimes are so rampant,

    although the various aspects of many factors, but the tax criminal legislation is not perfect, imperfect can not be ignored. Tax Crime in foreign countries most of the provisions of criminal legislation was more perfect, so despite the national criminal legislation, subject to the tax regime in the country, but learn from each other, or may be useful. Based on this, the attempt by comparing the government's tax revenue of China's criminal legislation and assessment of relevant legislation defects, a

    complete set of criminal legislation of China's tax proposals.

     1, the tax comparison of criminal legislation

     (A) countries (regions) tax criminal legislation overview

     Tax criminal legislation is highly subject to the tax system, as

    countries (regions) the tax system is different from the provisions of the

    tax crimes is also very different. Following is a summary of the countries (regions) the provisions on taxation of crime to make a description: (Note: Due to the limited information available, only based on available information on a representative sample of countries or regions of tax criminal legislation to make an introduction.)

     1. South Korea

     South Korea's "tax criminal penalties Law" focused on the provisions

    relating to tax crimes, generally are the following:

     (1) tax evasion. Refers to the fraud and other improper conduct of tax evasion, or receiving a tax rebate and tax-free behavior. Basis for

    the punishment of that crime to evade taxes applied to each different,

    such as to avoid the consumption tax, liquor tax, at three years imprisonment or the equivalent of 5 times the amount of crime, fined 500-

    5000 yuan, or a small amount of fine; to avoid stamp duty, then for each certificate and the books five times the amount of crime punishable by a fine or a small amount of 500-5000 yuan fine.

     (2) The delinquent tax crimes. Tax liability in a fiscal year, without reasonable cause one to three times a tax delinquency, that is constitutes the offense, it should be at one year of imprisonment or the imposition of a considerable amount of delinquent fines.

     (3) tax malfeasance. Unjustified tax officials did not refer to non-

    payment of taxes or tax has been obtained behavior, punishable by one year in prison or a fine equal to the amount of crime.

     (4) the crime of violation of VAT law. The offense consists of two aspects of behavior: First, should be based on value-added tax law, the

    development and delivery of tax calculations are deliberately non-payment,

    and the tax calculations when you make a false record and sentenced to one year in prison or the equivalent amount of the supply price VAT rate multiplied by the amount of two times the proceeds of a fine; two that should be submitted to the Government under the Value Added Tax Act Tax calculations were due to violence, coercion, inciting, abetting and colluding not to submit tax calculations or submitting false tax calculations are and sentenced to three years imprisonment or a fine of 1 million yuan; violence, coercion, incitement, aiding and abetting the perpetrators likewise.

     (5) concealing of property. The offense, including three cases: First, when the delinquency or possession of delinquent property of the person or to the tax evasion and tax evasion for the purpose of

    concealment and evasion of property or manufacturing fake contract, at two

    years in prison; second is when the custodian of the seized goods kept hidden items, tax evasion, consumption or destruction, of their punishment

    with the previous item; the third is to knowingly act or promise to help the former first two false leases are at a year in prison.

     (6) The destruction of Accounting. Right to destroy the evidence for the purpose of tax evasion, the tax law requires accounts kept in the two

    years made the day of burning, to destroy and hide persons, punishable by two years imprisonment or the equivalent amount of the loss of multi-count

    as taxable income After the calculated tax amount of a fine of 3 times.

     (7) the crime of making false declarations. Tax by another person to the government a false declaration is punishable by two years imprisonment or a fine of 2 million yuan; right to declare the law laid down for making false declarations, received 50 yuan shall be imposed or 500-5000 yuan for

    small fine.

     (8) inciting, aiding and abetting illegal crime. Right incite or abet taxpayers not to declare tax standards, or not collected, those who do not pay tax, at two years in prison or 50 yuan fine.

     (9) Multi-account deficit crime. Pairs will be more than the amount of corporate losses counted, sentenced to two years imprisonment or loss equal to the number counted as taxable income the amount of tax, calculated to three times the amount of a fine. [1]

     2. Japan

     Japanese sub-central tax and local tax laws two major categories of tax laws, tax offenses were also provided for in these two categories of tax legislation. "Japan's local tax law" in the provisions of the tax crimes of incitement to non-payment of tax crimes and the crime of tax

    resistance. The former refers to incite taxpayers to declare the tax corresponding to the standard amount of not to declare or make false declarations, or incite the special tax levy obligations to those who are

    not gold or gold does not pay would have been taxed behavior. Of the crime of Branch 3 years in prison or 20 million or less fine. The latter refers to no declaration or makes a false declaration, in order not to levy taxes or do not pay taxes, commit atrocities or coercive behavior. Guilty of the crime and sentenced to three years in prison or 20 million yen fine.

     Japan's "national tax law," the provisions of the tax crimes of unlawful disposition of property crime, the crime of false statements and

    obstructing inspections crime. Illegally dispose of property crime is erroneous or possession of the property taxpayers, a third party, in order to remove the delinquency disposition of its property to be hidden,

    disguised and property damage or burden to carry out sanctions against the state act. Legal Sentence of the offense is three years in prison or 50 million or less fine, the two sentences can impose. Misrepresentation refers to the crime of delinquents, delinquent property, possession of a

    third party, delinquents creditors or other property relations were, in tax collection staff to delinquency sanctions against them to question or examine the relevant books of accounts When not answering or making a false statement, and liable to 10 million yen fine. Check the crime is

    hampered delinquents, delinquent property, possession of a third party, delinquent creditors or other property relations in the tax collection staff to check the relevant books of account delinquency disposition documents, be refused, obstruct, evade, or books or documents in its records and produce spurious behavior. Its penalty of 10 million yen fine. [2]

     3. Germany

     German legislation on taxation of crime concentrated in the German tax law, its article 369 provides for the general types of tax crimes, the first 370 pairs of tax evasion and tax crime made specific provisions. Of its revenue provided for in Article 369 of the general categories of crime are: (1) According to the tax law should be subject to penalties for acts

    of punishment; (2) violations of prohibitions shall be subject to penalty punishment; (3) counterfeiting or forgery and tax ready to sign the relevant The value of symbol behavior; (4) shielding the implementation of the above acts of people.

     In accordance with its provisions of section 370, tax evasion and tax crime, the subject is obliged to pay taxes, including the obligation to pay tax for their own people and an obligation to pay taxes for others people. Specifically refer to: natural and legal persons, the legal

    representative; other capable people have no right to property, together groups and organizations responsible person; or in the absence of responsible person or property management agent, refers to members of the group, agents who deal with tax matters, person in charge of enterprises, and tax consultants. Acts of tax evasion crimes constitute only by intentionally divided into three categories: (1) to the financial management authority or other authority incorrectly or do not completely

    explain the significance of the fact that tax revenue; (2) breach of the provisions of the obligation not to financial management authorities made it clear right taxation of great significance to the fact that; (3) violation of the provisions of the obligation not to use taxes or tax seal logo. For the establishment of the crime of tax evasion, also requires to be caused by deficient or to themselves or others to obtain tax benefits on the results. For the tax evasion and tax crime, general office five

    years imprisonment or a fine; the circumstances are particularly serious, it should be at least 6 months to 10 years imprisonment. In addition, guilty of tax evasion a crime, they might be sentenced to additional penalties and security action. Additional penalties can be imposed,

    including denial of eligibility for public office and deprivation of right

    to be elected; can apply security actions are suspension of driving license and prohibited from engaging in certain occupations. [3]

     4. The United States

     The provisions of the United States on tax crimes focused on "the United States federal tax laws." Of course, since the United States is a federal country, each state has its own laws, are also provided in accordance with their tax situation of crime. The following only "The United States federal tax laws" in the provisions of the tax crimes, an introduction:

     (1) the crime of tax evasion. Means the intentional attempt to evade or evasion crimes. Statutory Sentence 1 million dollars fine or 5 years of

    a sentence of imprisonment, or both concurrently. The offense is a felony.

     (2) not as a tax fraud. "The United States Code," Article 26 section 7202 provides: Any non-taxation, land clearing or on behalf of the false tax acts are felonies. Legal Sentence of not more than 1 million dollars fine or 5 years imprisonment, or both concurrently.

     (3) non-submission of tax reporting crimes. Means the intentional breach of legal obligations, non-pay budget, tax, or taxes, non-submission

    of the report, do not keep or provide records or information behavior. Legal Sentence of 1 million dollars fine, or one year imprisonment, or both concurrently.

     (4) The crime of knowingly making false tax documents. Means the intentional production and signed contain about to be imposed in the event of breach of perjury under the conditions of the sentence, make a written statement or statements to be reconciled so signed by a person who knowingly false and incorrect material fact in any report, statement or

    other document behavior. Statutory Sentence for 5000 U.S. dollars fine or not more than 3 years of imprisonment, or both concurrently.

     (5) The crime of intentionally providing false tax documents. Means the intentional to the State Tax Administration to provide any list knows to be false, the report, account books, statements or other documents behavior. Statutory Sentence for 1000 U.S. dollars fine, or one year imprisonment, or both concurrently.

     In addition, the "United States Code," Chapter 2 T part of a 4 also provides for help, participation, promote, discuss or recommend tax fraud. [4]

     5. Russia

     The Russian Federation Criminal Code sets out the tax crime, only two, namely, Section 198 and Section 199 provides that citizens avoid

    paying tax crimes and evade payment of taxes levied on the crime to the organization. The former refers to citizens on the need for the declaration of income from time to time in order not to declare, or to knowingly distort the material on the income and expenditure included in the declaration of the means to evade paying taxes, a relatively large amount of behavior. Statutory Sentence as follows: the amount of the minimum payment for labor at 200 to 500 times the income of 2 months or

    sentenced to 5 months of wages or other income of a fine, or at 180-240

    hours of mandatory work, or at 1 year The following deprivation of liberty; the above acts, if the crime of tax evasion is a criminal record of the officers to implement, or a huge amount, a fine of 500 times the

    amount of the minimum payment for labor or sentenced to 1,000-fold into

    the 5 months to 1 year of wages or other income a fine, or at 3 years deprivation of liberty. The latter refers to the income and expenditure to knowingly distort the accounting documents and other means, or other revenue items to conceal the means to evade payment of taxes collected to the organization huge amounts of behavior. Statutory Sentence as follows: 5 years deprivation of office for a certain public office or engage in

    certain activities, rights, or at more than 4 months 6 months following the criminal detention, or at 3 years deprivation of liberty; multiple implementation of the above acts, the Department 5 years deprivation of freedom, and impose the following three years of deprivation for a certain position or engage in certain activities. [5]

     6. China's Hong Kong

     Hong Kong is a free port, low taxes, low taxes, tax collection and management of natural simple, often used as tax havens. For the tax

    illegal and criminal acts, are stipulations in the "Tax Regulations". Is defined as a crime is the law Article 82, paragraph 1, of tax evasion. Which states: any officer, such as the intent to evade tax or to assist others to evade tax and deliberately: in the provisions of this Ordinance fill out tax returns for the omission of any of the funds should be reported; in the provisions of this Ordinance fill out tax returns to make a false statement or false information; in accordance with the provisions

    of this section apply for deductions or allowance, making false statements; the signing of the provisions of this Ordinance, any declaration or submission of tax returns, but no reasonable grounds to believe that the correct person; right under this Ordinance and the

    proposed questions or requests for information of the request, orally or in writing to be false the answer; settings or authorize any false books of account or other records of, or forgery or falsification of any books or records of authorized; the use of any fraud, art or strategy, or authorize the the use of such fraud, art or strategy. Guilty of misdemeanor, should the summary conviction to a fine of 5,000 yuan, and an

additional fine of an amount equivalent to the offense and the short

    payment, or if the offense is of no avail surveillance should be a short note to pay the tax 3 times the fine and imprisonment for 6 months; if the person convicted may be sentenced to a fine of 20,000 yuan, plus a penalty tax in these circumstances, a short paragraph three times the fine and imprisonment for 3 years. In addition, various specific tax laws, such as the "Stamp Duty Ordinance," but also provides a number of tax evasion against the crime and punishment.

     7. China's Taiwan

     Taiwan's criminal provisions of the tax, "taxes and Collection Act" and other tax laws, the main ones being:

     (1) tax evasion. Refers to the taxpayer in order to treachery or other improper means taxes evasion behavior. A person who commits the crime, punishable by five years imprisonment, criminal detention or a single office, or impose a fine of 1,000 yuan.

     (2), tax agents and withholding agents convicted for tax evasion. Refers to the tax agents and withholding agents to treachery or other

    improper means to hide is reported that the short levy or non-withholding

    of taxes collected on commission, or behavior. Legal Sentence of the offense as follows: punishable by five years imprisonment, criminal detention, or a single office or impose a fine of 1,000 yuan.

     (3) tax agents and withholding agents Embezzlement. Refers to the unauthorized encroachment collected on commission or withholding agent has withheld the taxes collected on commission or behavior. Legal Sentence of the offense is: sentenced to five years imprisonment, criminal detention or a single office or impose a fine of 1,000 yuan.

     (4) Tax aiding, abetting the crime. Abetting or assisting such a crime, at 3 years of imprisonment, criminal detention or a fine of 1,000 yuan Division; implementation of the business lawyer or accountant who committed the sin of the preceding paragraph, will increase the sentence to 1 / 2.

     (B) Tax preliminary comparison of criminal legislation

     1. With regard to comparison of tax crime legislation

     With regard to countries (regions) of tax crime, the legislative approach adopted, can be divided into three kinds: First, the Penal Code

    style, will provide for a unified tax crime, the Criminal Code, such as Russia and China. Second, the Penal Code specifically style, about the equivalent of tax crime, the Penal Code provides for special tax penalty law. Such as South Korea's "tax committing Punishment Law" can be viewed as a crime for revenue-based "small Penal Code": the established general

    rule that the scope of application, application objects, the principle of punishment etc.; there are sub-plans, provides various kinds of crime and criminal liability. [6] 3 is a subsidiary of the Criminal Code style, about the provisions of tax crimes in specific tax laws, such as the

    United States, Japan, Germany, China and Taiwan. Under normal circumstances, the tax procedural law as a general rule, the tax substantive law also specified.

     These types of legislation have their own advantages and

    disadvantages. Penal Code, Criminal Law-type legislation to maintain the

    unity of focus will help to establish the authority of the Criminal Code to facilitate awareness of this type of crime in general grasp; disadvantage is that the specific counts with the Statutory Sentence

    separation, without the aid of a specific tax law, there is nothing to find out their specific constitution of crime. In addition, such a legislative approach to the implementation of the principles of legality have an impact, but also on changes in tax legislation does not show the home to not meet. Subsidiary legislation by the Criminal Code could be the biggest advantage is that changes along with changes in tax legislation that could change with the objective reality of the waste, amendment and

    enactment. The disadvantage is that seems haphazard, it is generally not easy to grasp, is not good to establish the authority of the Criminal Code. Special tax in the Penal Code, Penal Code, type style and subsidiary legislation criminal-style between the two, naturally both advantages and disadvantages of both, but all are weakened. Generally speaking, each country-specific legislation is adopted which their own economic development, legal and cultural traditions, legal practices linked.

    China's criminal to take the tax legislation by the Criminal Code, in line with our legal and cultural traditions, is also compatible with China's basic national conditions. China's legal culture with special emphasis on a unified, centralized, historically China has also been a totalitarian country, like the compilation of code. Therefore, the crime of tax legislation by the Criminal Code also taken to shun ran Chengzhang. Even if there is one-way criminal law, is an expedient measure, but also included in the maturity codes. In addition, the code-type legislation on

    the taxation of crime, as long as the legislation to take science and technology, to avoid a mismatch between the counts and the Statutory Sentence can adapt to changes in tax laws are not living the reality, but

    also to maintain the unity and focus on the law. Therefore, our tax crime legislation is compatible with China's national conditions, and only in the specific legislation is technically there are still some problems. This is primarily a crime tax counts how to design, how to interface with the tax laws issues.

     2. Comparison of the types of crimes on taxation

     China's tax crime under the Penal Code the crime of tax evasion, tax resistance crime, to evade taxes recovered crime, the crime of defrauding

    export tax rebates and invoices crime. Under normal circumstances, tax evasion is a crime in various countries are provided, is the most basic criminal tax offenses. For the crime of tax resistance, few countries have separate regulations, the general as a crime of obstructing treatment, such as the United States, Germany, South Korea and so there is no separate requirement, but the Japanese made a requirement. China's recovery of back taxes to escape the crime of tax evasion and other

    countries is not a concept, in other countries generally refers to tax evasion and tax evasion, tax evasion, the tax evasion counts and China's much different. The same crime, tax fraud, tax fraud crimes in China refers specifically to the crime of defrauding export tax rebates, in

    foreign countries, tax fraud, tax evasion crimes as acts of the general treatment, such as Japan. In addition, the invoice should be a crime, our crime legislation on taxation, one of the major characteristics of other

    countries in general has no specific requirement.

     A country's tax revenue to a large extent the types of crimes subject to national taxation and tax practice. If a country does not have some sort of tax system, naturally there can be no criminal legislation

    relating to such taxation; if a country's tax law a certain area, the phenomenon is not serious, naturally they will not create interest in this area legislators. China's current taxation system is based on equal emphasis on value-added tax and income tax to other taxes, as supplemented by complex tax system. Past, present and in the subsequent period of time, is China's most important value-added tax. Since our country to implement

    a value-added tax invoices for VAT deduction system has been marked by the

    relevant VAT invoices crime intensified. Have been in order to value-added

    tax invoices to curb tax evasion, VAT invoices can be turned into an important tool for tax evasion. Faced with this situation, legislators set up VAT invoices in a crime, became a necessity. However, in foreign

    countries, particularly in the western developed countries, already completed a value-added tax as the main body of the tax to income tax as the main body to the changes in the tax system, therefore, does not provide VAT invoices in a crime, is not surprising. The crime of defrauding export tax rebates in China provides no exception. If China does not export tax rebate system, defrauding export tax rebates activities are not rampant, there can be no criminal law the crime of

    defrauding export tax rebates. So, can not exist in the countries of different types of tax crime in itself to compare which one is better, the key is to see whether such a provision of the tax system and tax practice their own fit. In general, the containment of crime should be

    comprehensive, not only from the "flow" of containment, but should be "source" interception. My crime is that the provisions of the invoice from the "source" to control the loss of state taxes. From a crime control theory point of view, is a scientific and reasonable, and it is in line with China's actual conditions.

     3. Comparison of the main body on taxation of crime

     Tax crime, the main body of normally involves two categories: First, the relationship between the main body of tax laws, which represents state tax officials and taxpayers to tax; two main legal relationship with the tax revenue associated personnel, including tax agents and withholding agents , agents, and general natural. Tax officials and taxpayers are

    generally in each country (region) provides the main body of the column of tax crimes, for taxpayers, both natural persons, but also legal. But for the second category the main body provides different: Some provisions of the withholding agents and tax agents, such as China's Taiwan; some

    provisions of the agent, or even tax advisers, such as Germany; Other States to delinquency of those creditors, the debtor or other property relations were also included in the main body of the listed tax crimes,

    such as Japan.

     China's criminal law does not require agents and tax agents. Previously, China has provided to tax agents for the main body of the crime of tax evasion, but later canceled. At present, the occupation tax for the tax agents, and generally punishable corruption; while for it does not levy taxes, it can not be held criminally responsible. States are generally in accordance with their tax revenue to provide for the subject of crime. For example, withholding agents, if a State does not implement

    the tax withholding system, as well withholding agent does not exist, naturally, not to mention his criminal liability. China has not collected on commission and the agent to provide for criminal liability, it should be said that a major shortcoming. Although the tax agency system in China

    has just started, but with the further development of China's market economy, the deepening of China's tax reform, tax agents is bound to become a developing and expanding industries. Followed by the tax agent is

    bound to break the law, how to resolve their legal responsibility must be that we will be facing a major problem. Therefore, China's legislation on tax crime should have in advance. Moreover, China also faces enormous changes in the tax system, which needs to have ahead of tax criminal

    legislation. Reposted elsewhere in the paper for free download http://

     4. Comparison of penalties on tax crimes

     (1) Life sentence

     The above-mentioned countries and regions, without a death penalty provisions of the Statutory Sentence for tax crimes, but my shift the death penalty provisions of forging VAT receipts for defrauding export tax rebates, deductions tax invoice crimes and forgery, the crime of sale of value-added tax invoices The Legal Sentence. Many countries do not tax the

    death penalty for the crime, on the one hand with the country's penal system is not related to life sentences, such as Germany, etc.; the other hand, with the country's criminal policy are closely related, such as the

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