偷税罪认定问题研究
本站原创 论文中文摘要：偷税罪是指纳税人故意违反税收法规,采取欺诈手段不缴或少缴税款,情节严重白勺行为。国家在刑法中明确规定偷税犯罪,并明确规定偷税犯罪应受到白勺刑罚,就是使得有偷税倾向白勺人想实施偷税犯罪时会权衡偷税犯罪行为给自己带来白勺“利”和“不利”,从而放弃实施偷税犯罪。实践中,偷税罪与一般偷税行为之间存在罪与非罪白勺界限、偷税罪与骗取出口退税罪等涉税犯罪也有着此罪与彼罪白勺区别、偷税罪中本身白勺立法规定,使得偷税罪白勺一罪和数罪较难认定、单位偷税犯罪中也有一些问题值得探讨和研究。通过对偷税罪认定问题白勺研究,对司法实践会起到一定白勺指引作用,也会对立法完善提供一定白勺借鉴和理论支持
Abstract（英文摘要）：www.328tibEt.cn Part One boundary between crime of evading tax and ordinary tax evasionWhether the act of evading tax is crime or not will be illustrated in this part.The crime of evading tax should be seperated fron ordinary act of evading tax, for they lead to different punishment course and legitimate consequences. They differ in quality. Theoretically, ordinary act of evading tax harms the society less than crime of evading tax, and does not reach the concept of crime. Criminal Law in our country has established two criteria for executating crime in 201st term, that is quantity plus ratio and times For the stiterion“quantity plus ratio”, I believe that it seems to be reasonable, but actually not scientific. Since this means of calculating could not get unified in practice,and furthermore makes possible for certain judicial personnel to bend the law by making legitimate“excuses”for executating subjectively. This legislative regulation should be abolished and whether commiting crime or not and the sebtence should be evaluated by the amount of invading tax.As to the criterion of“times”, I think that legislative body regulates it in this way for the sake of human’s subjective evil. But I he the ideas that this is regulated too severely so that it ignores the objectice harms of tha act. This regulation makes practical operation easy and is effective in preventing the judicial personnel from judging subjectively, but it goes to extreme and disobeys the law that subjecivity and objectivity should be unified.Part two the classification between the act of evading tax and ambiguous crimeThe problems of this crime and that crime in the kinds of crimes related to tax I mainly classify the crime of evading tax from that of uggling ordinary goods, the crime of evading tax from fraud of exporting tax, the crime of evading tax from hiding, damaging accounting evidence,accounting books, financial accounting report.1.In practice, when a person is uggling ordinary goods or objects, he usually has invaded both teriff and value-added tax and consuming tax. Different opinions exist in how to execulate. I think that this situation can be treated as merely the crime of uggling odinary goods.2.for the situation of the tax-payer’s freud in claiming exporting or other means to cheat tax more than what he pays , I think that the Criminal Act only regulates that it should be punished as crime of freud of tax and freud in exporting tax instead of punishing with all crimes together. Therefore, this situation should be treated as imaginary concurrence of crimes is punishable by heier punishment,that is, the freud of exporting tax.3. the crimes of hiding, damaging accounting evidence, accounting books, financial accounting report ae new crimes added in the Amendament of Criminal Act of People’republic of China, which was passed in the 13th meeting of the Standrad Committee of National People’s Congress on December 25th, 1999. in practice, it is common for the accounting personnel to disobey the regulation in retaining accounting books, accounting evidence ,and especially damaging them. We should not make rhem the same in dealing these situations. In my opinion, we can deal with them seperately:first, those that should be dealed with as ordinary illegitimate situation;second, fraud of exporting tax, the crime of evading tax;third, hiding, damaging accounting evidence,accounting books, financial accounting report.Part three the classification of only crime and multiple crimes in the crime of evading taxThis part is to illustrate the problem of the only crime of evading tax and multiple crimes in one act of evading tax.In judicial practice, it is difficult to dicide only crime of evading tax or multiple crimes in crime of evading tax. Because of numerous ways of evading tax and the regulation of crime of evading tax itself. I will analyze it according to some common situations.1.the relation of the crime of evading tax with the crime of value-added invoice2. the relation of the crime of evading tax with bribing3 the dealing with invading tax first and refusing to pay tax.4.the identification of invading tax first and escaping from taxAs to the identification of invading tax first and escaping from tax, in judicial practice, some tax-payers commited the crimes of invading tax, and were punished by taxation and judicial departments. In order to escape from the duty to pay tax, they usually traner or hide their possession so that taxation and judicial departments he no way to pursue the tax thay invaded.To deal with this situation, I think it is enough to form crimes of invading tax and escaping owed tax and should be punished as multipe crimes, for the crime of invading tax and that of escaping tax are commited in different intentions of crimes and they he no connection in law and they form respectively crime of invading tax and that of escaping owed tax.Part four the identification of crime of unit invading taxThis part will illustrate the differences between crime of unit invading tax and that of natural person’s commiting crimes. The differences between crime of unit invading tax and that of natural person’s commiting crimes lie in that the former must be pursuing illegitimate profits for the unit and must be consented,authorized or ordered by the unit. If the unit divided what they get by invading tax personally, then it could not treated as crime of unit invading tax.It is intensely argued on the question that whether private cooperation should be an object of unit crime. I believe that how to judge whether a private cooperation has a status of artificial person is the point. Among th four types of private cooperations, only private limited cooperations and private limited-liability companies he the status. For the private exclusive investment and private joint cooperations, who do not he the qualification of being an artificial person, we should not identify it as a unit crime. We should punish it according to the regulations of crimes for natural persons.
论文关键词： 刑法学；偷税；偷税罪；认定；
Abstract（英文摘要）：www.328tibEt.cn Part One boundary between crime of evading tax and ordinary tax evasionWhether the act of evading tax is crime or not will be illustrated in this part.The crime of evading tax should be seperated fron ordinary act of evading tax, for they lead to different punishment course and legitimate consequences. They differ in quality. Theoretically, ordinary act of evading tax harms the society less than crime of evading tax, and does not reach the concept of crime. Criminal Law in our country has established two criteria for executating crime in 201st term, that is quantity plus ratio and times For the stiterion“quantity plus ratio”, I believe that it seems to be reasonable, but actually not scientific. Since this means of calculating could not get unified in practice,and furthermore makes possible for certain judicial personnel to bend the law by making legitimate“excuses”for executating subjectively. This legislative regulation should be abolished and whether commiting crime or not and the sebtence should be evaluated by the amount of invading tax.As to the criterion of“times”, I think that legislative body regulates it in this way for the sake of human’s subjective evil. But I he the ideas that this is regulated too severely so that it ignores the objectice harms of tha act. This regulation makes practical operation easy and is effective in preventing the judicial personnel from judging subjectively, but it goes to extreme and disobeys the law that subjecivity and objectivity should be unified.Part two the classification between the act of evading tax and ambiguous crimeThe problems of this crime and that crime in the kinds of crimes related to tax I mainly classify the crime of evading tax from that of uggling ordinary goods, the crime of evading tax from fraud of exporting tax, the crime of evading tax from hiding, damaging accounting evidence,accounting books, financial accounting report.1.In practice, when a person is uggling ordinary goods or objects, he usually has invaded both teriff and value-added tax and consuming tax. Different opinions exist in how to execulate. I think that this situation can be treated as merely the crime of uggling odinary goods.2.for the situation of the tax-payer’s freud in claiming exporting or other means to cheat tax more than what he pays , I think that the Criminal Act only regulates that it should be punished as crime of freud of tax and freud in exporting tax instead of punishing with all crimes together. Therefore, this situation should be treated as imaginary concurrence of crimes is punishable by heier punishment,that is, the freud of exporting tax.3. the crimes of hiding, damaging accounting evidence, accounting books, financial accounting report ae new crimes added in the Amendament of Criminal Act of People’republic of China, which was passed in the 13th meeting of the Standrad Committee of National People’s Congress on December 25th, 1999. in practice, it is common for the accounting personnel to disobey the regulation in retaining accounting books, accounting evidence ,and especially damaging them. We should not make rhem the same in dealing these situations. In my opinion, we can deal with them seperately:first, those that should be dealed with as ordinary illegitimate situation;second, fraud of exporting tax, the crime of evading tax;third, hiding, damaging accounting evidence,accounting books, financial accounting report.Part three the classification of only crime and multiple crimes in the crime of evading taxThis part is to illustrate the problem of the only crime of evading tax and multiple crimes in one act of evading tax.In judicial practice, it is difficult to dicide only crime of evading tax or multiple crimes in crime of evading tax. Because of numerous ways of evading tax and the regulation of crime of evading tax itself. I will analyze it according to some common situations.1.the relation of the crime of evading tax with the crime of value-added invoice2. the relation of the crime of evading tax with bribing3 the dealing with invading tax first and refusing to pay tax.4.the identification of invading tax first and escaping from taxAs to the identification of invading tax first and escaping from tax, in judicial practice, some tax-payers commited the crimes of invading tax, and were punished by taxation and judicial departments. In order to escape from the duty to pay tax, they usually traner or hide their possession so that taxation and judicial departments he no way to pursue the tax thay invaded.To deal with this situation, I think it is enough to form crimes of invading tax and escaping owed tax and should be punished as multipe crimes, for the crime of invading tax and that of escaping tax are commited in different intentions of crimes and they he no connection in law and they form respectively crime of invading tax and that of escaping owed tax.Part four the identification of crime of unit invading taxThis part will illustrate the differences between crime of unit invading tax and that of natural person’s commiting crimes. The differences between crime of unit invading tax and that of natural person’s commiting crimes lie in that the former must be pursuing illegitimate profits for the unit and must be consented,authorized or ordered by the unit. If the unit divided what they get by invading tax personally, then it could not treated as crime of unit invading tax.It is intensely argued on the question that whether private cooperation should be an object of unit crime. I believe that how to judge whether a private cooperation has a status of artificial person is the point. Among th four types of private cooperations, only private limited cooperations and private limited-liability companies he the status. For the private exclusive investment and private joint cooperations, who do not he the qualification of being an artificial person, we should not identify it as a unit crime. We should punish it according to the regulations of crimes for natural persons.
论文关键词： 刑法学；偷税；偷税罪；认定；