On The Perfection Of China'S Tax Legislation System

First, tax legislation refers to the specific activities of certain state organs in formulating, modifying and abolishing tax laws and regulations within statutory limits of authority according to legal procedures.

The tax legislative system mainly stipulates the system of dividing the tax legislative authority among certain state organs. Its core is to clarify the division of tax legislative powers between the central and local governments. Under the compound legislative system, it also includes the problem of dividing the tax legislative authority between the power organ and the authorized administrative organ.

It should be pointed out that the Tax Law mentioned here is a broad tax law, including tax laws of various grades, not just tax laws.

The legislative system of taxation is subordinate to the whole legislative system of a country.

Most scholars believe that the legislative system in the world today has three kinds of single (or one yuan) system, composite (or pluralistic) system and checks and balances system. However, the current legislative system in China is different from that of the Federalist state, and is different from the general unitary state. [1] is a centralized and unified legislative system with appropriate centralization and centralization and centralization and decentralization at the central and local levels.

Some scholars directly divide the legislative system into four modes: centralization mode, decentralization mode, centralization decentralization mode and decentralization centralization mode according to the way of dividing the central and local legislative powers, and think that our legislative system belongs to the mode of centralization and decentralization, that is, the legislative power is mainly exercised by the central government, but under certain limits and conditions, the local legislative power can be appropriately exercised by some central authorities.

[2] referring to the above scholars' classification methods of the basic types of the legislative system, a comprehensive inspection of the tax legislative system in various countries in the world is mainly conducted in the following two categories: 1, according to whether the tax legislative authority is allocated between the central and local governments, and can be divided into the first level tax legislative system and the multi-level tax legislative system. 1

Under the first level tax legislative system, the tax legislative power belongs exclusively to the central government organs of the state, and no local political organ has the right to formulate tax laws and regulations, such as France, Brazil, Norway, Romania and other countries.

Under the multilevel tax legislative system, the central government organs and the local authorities can enact tax laws corresponding to their respective ranks of authority within their respective jurisdiction.

Such as the United States, Canada, Italy, Mexico and other countries are implementing this system.

2, according to whether the legislative power of tax is allocated among different state organs, it can be divided into unified tax legislative system and diversified tax legislative system.

The former means that the legislative power of taxation is exercised by the state organs of the same nature, generally the state power organs or the legislature, that is, the simplification of the nature of the legislature, such as Canada, Mexico, Australia, New Zealand and other countries.

Under the diversified tax legislative system, the tax legislative power is divided among two or more than two different state organs, usually the state legislature and state administrative organs, such as the United States, Britain, Denmark, Belgium and other countries.

According to the classification standard of the above tax legislation system, our current tax legislative system shows the characteristics of diversification and multilevel.

The so-called "pluralism" means that our country's tax laws and regulations include both the formulation by the state power organ, and the authorization by the state administrative organ, which is a horizontal distribution method of the tax legislative authority. The so-called multi-level refers to the division of the tax legislative authority between the central government organs and the local authorities, which is a vertical division of the tax legislative authority.

Therefore, our country has initially established a tax legislative system which is in line with the coordination of horizontal cooperation and the subordinate relationship of vertical effects.

Therefore, according to the classification of effectiveness, China's tax legislative authority is actually divided into three levels: the first level, the National People's Congress, according to the constitution, as the highest organ of state power (including the Standing Committee of the National People's Congress), exercising the national legislative power, making and promulgating the basic laws of the state's taxation.

For example, the law of the People's Republic of China on tax collection and Administration promulgated in 1992 and the personal income tax law of the People's Republic of China revised in 1993.

The tax law based on the legislative authority level is called the tax law. It is the only one in the origin of the tax law, which is only second of the effectiveness level.

There are second levels of the two levels.

It is the State Council as the highest administrative organ of the state, exercising its administrative legislative power according to the Constitution and laws, enacting the relevant administrative laws and regulations of Taxation, or exercising the authorized legislative power or authorized legislative power according to the authorization of the National People's Congress and its Standing Committee, such as the seventh session of the Standing Committee of the Sixth National People's Congress in 1984, according to the recommendation of the State Council, and decides to authorize the State Council to draw up relevant tax regulations in the course of implementing the tax reform of state-owned enterprises and reforming the industrial and commercial tax system, to release the trial in the form of a draft, and to revise it to the Standing Committee of the National People's Congress in accordance with the experience of trial implementation. In 1985, the third session of the Sixth National People's Congress authorized the State Council to Formulate Interim Provisions or regulations (including tax laws and regulations) in the aspects of economic restructuring and opening to the outside world. First level

The second level is the functional departments of the Ministry of Finance and the State Administration of Taxation, which specifically exercise the functions of fiscal and tax administration, and have the right to formulate tax administrative rules and regulations according to the authorization of laws and regulations formulated by the State Council.

The tax law based on the legislative authority level is collectively referred to as the tax administrative regulations and regulations. After the tax law is applied in the source of the tax law, it is the third level of effectiveness.

The third ranks of the two levels are: first, the people's congresses and their standing committees of all provinces, autonomous regions and municipalities directly under the central government, as well as the corresponding level people's governments and their relevant functional departments; two, the people's governments of provinces, autonomous regions and municipalities directly under the central government and the people's congresses and standing committees of the larger cities approved by the state and the corresponding level people's governments and their relevant functional departments.

The above-mentioned organs of the State shall exercise local legislative power according to the constitution or, in accordance with the provisions of relevant laws and regulations (local administrative organs may exercise their authorized legislative power according to the authorization of the local authorities), and formulate local tax collection regulations or local tax administrative rules applicable to the local area only according to local actual conditions.

The tax law based on the level of legislative authority can be collectively referred to as the local tax law, and is the fourth effective level in the origin of the tax law.

Two, it needs to be explained that the tax legislation system and the tax law system are two concepts which are interrelated and different from each other.

The legislative system mainly refers to the division of legislative authority. "It indicates the nature and scope of legislative power of any state organ, and the power to derive other legislative normative documents (regulations and regulations of the government and local governments) derived from the legislative power and the relationship between these powers."

The main content of the [4] tax legislative system is the tax legislative authority and its division.

The system of a department law refers to the unified whole of various legal norms and organic links in the department law, which is different from the legal system.

"The legal system usually refers to a unified whole formed by the combination of all the existing legal norms of a country into different legal departments."

The legal system of [5] is relative to all the legal norms of a country. Its next level constitutes a legal department or a departmental law, so it can be called a "departmental law system".

[6] and the system of a department law, only for the department law, its subordinate units directly represent the various legal norms belonging to the Department.

The tax law system is mainly based on various tax laws and regulations and their constitution.

As mentioned before, the tax legislative system includes the division of tax legislative authority, the exercise of tax legislative power and the establishment of state organs of tax legislative power. Of course, it also involves different tax laws and regulations based on different levels of tax legislative power.

The tax legislative system needs to be clearly defined by the state in the form of legislation, which belongs to the superstructure category.

The study of the tax law system is the way of tax laws and their organic connection (generally the way of taxonomy). It is mostly built out of theoretical research or the need to provide reference for legislation. Therefore, it is not necessary to state laws explicitly.

In fact, the effectiveness of tax laws based on different levels of tax legislative authority determines the most basic form of tax law system.

In addition, the tax law system can also be divided into tax entity law, tax procedure law and tax authority law according to the different contents of tax law, and whether tax law is composed of foreign-related factors (divided into foreign-related tax law and internal tax law).

The purpose of reforming and perfecting the tax legislative system is not only the need of perfecting the overall legislative system of the state, but also the need to build a more complete and reasonable tax law system.

For example, the division of tax legislative authority between the NPC and its Standing Committee and the State Council determines whether our tax law system is mainly based on the tax law with higher efficiency or the tax administration regulations with the second level of effectiveness.

China's current tax law system is mainly based on tax administrative laws and regulations, supplemented by tax laws. Although this is determined by the current political and economic development situation in China, it is a prominent phased feature of our tax law system. In the long run, our country will eventually build a tax system which is mainly composed of tax laws and tax administrative regulations, which all depend on the further reform and improvement of the tax legislative system.

Three, since the constitution established our current legislative system in 1982, more than ten years' legislative practice shows that the current legislative system is basically in line with the actual situation of China, and has played a positive role in the socialist modernization drive, but there are also some problems.

It is mainly manifested in the following aspects: the division of legislative authority is too principled; the scope of legislative authority is not clear.

For example, the Constitution stipulates that the National People's Congress "formulates and revisions criminal, civil, state organs and other basic laws", but does not specify what matters can be enacted on these basic laws. The scope of other basic laws is not clear. The Constitution stipulates that the Standing Committee of the National People's Congress shall "formulate and revise laws other than basic laws formulated by the National People's Congress", but there is no specific provision for dividing "basic laws" and common law standards.

For example, the Constitution stipulates that the State Council can "stipulate administrative measures in accordance with the Constitution and laws, formulate administrative rules and regulations, issue decisions and orders".

Moreover, the local organization law also does not specify the scope of legislative authority of the legislature.

[7] there are many problems in the current legislative system in China, which reflect to varying degrees in the tax legislative activities.

For example, in respect of the legislative authority of Taxation, the constitution of 1982 did not specify which category and state organ it should belong to. However, judging from the two authorized decisions made by the Standing Committee of the National People's Congress and the National People's Congress in 1984 and 1985 respectively, it should be considered that the right to tax legislation belongs to the NPC and its Standing Committee.

However, in the case of authorization, the State Council issued a series of tax administrative regulations, so that the existing tax laws and regulations are mainly based on a large number of tax administrative laws and regulations. The tax laws are limited to "People's Republic of China personal income tax law", "People's Republic of China foreign investment enterprises and foreign enterprises income tax law", "People's Republic of China tax collection and management law" and "People's Republic of China Agricultural Tax Ordinance" [8], and so on, which do not meet the requirements of [9].

To reform or solve various deficiencies in our current tax legislative system, we should first rely on the reform and improvement of the whole legislative system.

In addition to the different kinds of legislative powers (national legislative power, administrative legislative power, local legislative power and authorized legislative power, etc.) which are enjoyed by the state organs with distinct nature and different levels of the constitution, the legislative powers of the above-mentioned state organs should be made clear and specific through the formulation of legislative law and the adoption of enumeration and restriction.

On the basis of [10], it is possible to further improve the tax legislative system.

Specifically, we believe that we should improve the existing tax legislation system from two aspects: [11] 1, in the longitudinal effect subordinate relationship, we should reasonably and moderately divide the central and local tax legislative powers.

Our country should, in accordance with its own actual conditions, not only have the unity of reflecting the overall interests, but also have the flexibility of giving consideration to local interests under the unified guidance. It is necessary to maintain the centralization of the state's macro regulation and control, and to give the local necessary powers under the centralized guidance, so as to achieve reasonable separation of powers in the division of the legislative authority of the tax collection.