【作者】 付巍；

【导师】 董进宇；

【作者基本信息】 吉林大学 ， 法律， 2005， 硕士

【摘要】 权利问题作为法律核心问题,在现代法治国家中处于首要地位。在我国社会主义市场经济日趋完善、税收在国家财政收入中的地位不断增强的今天,正确认识纳税人税收权利主体的法律地位,赋予纳税人应有的权利,无论是对于我国税收法学研究,还是对于我国税收法律实践,都具有极其重要的现实意义。长期以来, 我国对税收的研究多是从“政治权力分配论”角度进行的,尤其强调国家需要、国家本位和税收的“三性”。这种提法片面强调政府的征税权利和公民的纳税义务。现行税收法律法规对纳税人权利从理论基础到权利保护的论述是不系统的,不完整的。在实际生活中,纳税人权利意识淡漠。基于这样的出发点,本文作者借鉴中外关于纳税人权利的规定,对我国纳税人权利有关理论及现状问题作一研究分析。本文分三个部分对纳税人权利问题进行细致论述,首先以纳税人权利的理论基础为出发点,对纳税人权利的含义、特性、分类予以界定,然后针对我国纳税人自身权利意识、国家立法状况、现行体制影响及社会现状进行分析,最后提出加强与完善我国纳税人权利及保护制度的具体建议,以期加深人们对我国纳税人权利及保护有关问题的认识。更多还原

【Abstract】 Following the developmental tendency of the world, more and more attentions to the protection of taxpayers’rights have been paid by countries and international organizations, and not a few countries have issued the declaration of taxpayers’rights or made bills on taxpayers’rights. The tendency is embodied in the new “Tax Administration Law”of our counter. The discussion on the obstacles to realize rights of taxpayers is good for improving the tax legal system and building a socialist market economy and legal society. In current China, the protection of taxpayers’rights is still a new area. Though the new revised tax administration law prescribed the rights of taxpayers clearly for the first time and intensified the responsibilities and obligations of tax organs, in a whole, the protection of taxpayers’rights in our country has certain shortcomings and deficiencies not only in the awareness of taxpayers’rights, but also in the legislative protection of the state, the current system and the executing behaviors of tax organs. Therefore, it is necessary to discuss thoroughly on taxpayers’rights from theoretical research to practice. The article can be divided into three parts as the following: The first part: theoretical discussion on the rights of taxpayers. Firstly, it introduces the theoretical foundation of taxpayers’rights, which includes the nature of tax, the structure and nature of tax legal relation, and the political, legal premise of taxpayers’rights. First, from the perspective of economy, tax is defined as the price pf pubic products. The relation between the offer of public products and government tax revenue in fact is kind of market exchange at equal value; from the law science, the subjects of tax legal relation are the state, the tax organs and taxpayers. The conception of tax in law refers to the material paying obligations taken by taxpayers (citizens) as the subject of rights and obligations legally, on the premise of performing the obligation of paying tax themselves, and according to the tax law enacted on the base of the Constitution; Next, it discusses the structure and nature of tax legal relation. Tax legal relation refers to four kinds of legal relationships among the three subjects of paying tax (tax paying subject, the state and the tax collecting organs), namely, the legal relationship of tax and the Constitution; and the legal relationship of international tax distribution. The article holds that when determining a certain specific tax legal relationship, we should define the nature of particular tax legal relation under particular circumstances according to its contents, involved subjects and the different stages in the process of the tax activity of the state. Defining the nature of abstract tax legal relation as a whole, we can define it as relationships of tax creditor’s rights and liabilities, affirm and endow the deserved rights for taxpayers as the essential require of tax legal relation; finally, it is only on the political and legal premises of “mechanism”and “contract system”, it can be established the relative equal level of the state as subject of collecting tax and the public as subject of paying tax in tax legal relation, and the rights of tax payers can be realized. Secondly, it discusses the meaning and characteristics of taxpayers’rights. The rights of taxpayers have broad and narrow meanings. In broad sense, it refers to the rights that taxpayers have in the aspects of politics, economy and culture; in narrow sense, it means that based on the affirmation and regulation of tax law, taxpayers can produce certain acts or produce no acts in the process of performing the obligation of paying tax, and can require tax organs to produce or prohibit certain acts in order to realize the possibilities of self legal benefits. Taxpayers’rights have the characteristics of concentrated attention of the enjoying subject, legality of the enjoying conditions, and tendency of the enjoying aim. Thirdly, it classifies rights of taxpayers into natural (or innate) rights, legal rights, deduced rights, and appointed rights. That is to say, the rights of taxpayers include not only legal rights with universal application, but also natural rights, deduced rights and appointed rights with special meaning. The natural and deduced rights of taxpayers are originated from tax law, and the former may be dependent within the constitution or civil law, while the latter is determined by certain accepted theoretical explanations. Fourthly, it expounds the necessity of protecting rights of taxpayers. It is not only in accordance with modern legal spirit of the unification of rightsand obligations, but also good for strengthening the awareness of taxpayers to pay tax, reducing conflicts between tax paying and collecting, making full use of the functions of tax revenue adjusting distribution, and enhancing tax administration according to law. The second part: analyzing problems existing in the protection of taxpayers’rights in our country based on the above theories. First: the weak awareness of protecting rights of taxpayers. Compared with the mature and clear awareness of protecting taxpayers’rights in western countries, the awareness in our country is very weak. This is due to traditional factors, which include the influences to the awareness of taxpayers by Chinese traditional culture, and traditional tax theories, and also due to the factors of influences that shortcomings exist in the legal manner to deal the relation of tax and price, and that unreasonable phenomena exist in some public equipments and social service. Second: problems existing in the current legislation on protecting rights of taxpayers. The following are the major shortcomings in the prescriptions to taxpayers’rights in our current constitution: The constitution mentions only the obligations of taxpayers but no prescriptions about their rights, which cannot represent the spirit of legalism and justice of taxation; The level of tax law is lower, the legislation of departments is not regulated, and no basic tax law is complete; Tax administration law makes so rough prescriptions for taxpayers that procedure prescription is lacked. Conflicts of tax law and blanks in law lead to random in execution. Third: the influences of current system to the protection of taxpayers’rights. Transparency is lacked in financial balance system. During a long period after the foundation of China, tax payers have no independence as economic subjects and no independent status. Fourth: the basic conditions of taxpayers’rights being violated. Due to the lack of supervising and restricting system, there is a random in the execution of tax personnel, which violates taxpayers’rights severely. Because ruling tax by assignments makes tax execution far from the right orientation, the right of being respected is paid little attention, the right of knowing is not satisfied, the right of selecting tax reporting manners is limited, and taxdeputy is force, and the principle of voluntary is violated, and so on. The third part: proposing several suggestions to improve the protection of taxpayers’rights in China based on issues discussed above. First, enhance taxpayers’awareness of protecting rights. Renew tax theories, change legal dealing manners, establish new tax concepts of protecting taxpayers’rights and strengthening obligations of the state; popularize tax education and publication; optimize tax service to make taxpayers feel the existence of their rights. Second, improve relevant legislation on rights protection of taxpayers. Add prescriptions to relevant contents of tax rules in constitution in order to provide valid basis for tax law; improve the legislative work of tax law and raise the legal level of tax law; construct legal framework for rights protection of taxpayers, and meanwhile add the rights for taxpayers to acquire rights of reasonable treatment, tax planning, acknowledgment, record and free from punishment because of hearing wrong opinions of tax personnel; substantiate and improve tax procedure law, establish effective tax hearing system and rights relief manner, and improve the prescriptions of tax procedure to make tax administrative proceedings and tax economic proceedings into tax proceeding. Third, build complete system for protecting rights of taxpayers. Build a transparent open financial balance system; stick to principle of “substantial tax collecting”, and enhance the supervision to the execution; fasten the step of tax deputy legislation and build rights protecting organizations for taxpayers. In the process of protecting the rights of taxpayers, on one hand, the system of tax law can become more systematic and regulated; on the other hand, the rights awareness of taxpayers can be awaken to make taxpayers exercise their rights freely and push forward the legalization of the process of democracy in our country.更多还原