论税收优先权的效力冲突

On the Forces Conflicts in Tax Privilege

《税收征收管理法》第45条确立了税收优先权制度,这对于保障国家税收的实现具有重要的意义,但该条对如何协调税收优先权的效力冲突,规定过于简略,缺乏操作性。笔者特就这一问题进行了探讨,并得出如下结论:(1)坚持国税优先于地税原则,在同一税种或同顺序的税收之间,实行税收"扣押优先"或"交付请求优先";(2)税收优先于普通债权,法律另有规定的除外;(3)税收与抵押权、质权之间,原则上依据权利设定的时间决定先后顺序,但土地增殖税和关税应优先于抵押权和质权,留置权具有绝对优先于税收债权的效力;(4)协调税收优先权与私法优先权的效力冲突,应分四种情况区别对待。

The tax priority system is established by the 45th item in 《the administration act of tax imposi-tion》, which is significant to safeguard the realization of the national tax, but this item is too simply to operate as to how to harmonize the effect conflict of the tax priority. The author particularly discusses this issue and draws follow conclusions: One, insist on the principle of national tax is prior to local one, as for the same kind of tax or the same ranking tax, 'detaining priority' or 'delivering claim priority' principle should be carried out. Two, tax is prior to common creditor's rights, except that law otherwise regulates. Three, among tax, mortgage right and impawning right, in principle, priority should be confirmed by the time setting up the right, but the value -added tax of land and duty are prior to mortgage right and impawning right, the detaining right is absolutely prior to tax. Four, four situations should be distinguished in harmonizing the effect conflict between the tax priority and civil law priority.