论“税”概念的渊源及其于法学语境下的建构

On Origin of the Concept of Tax and Its Construction in the Context of Jurisprudence

法学语境下的"税"概念是各种理论与制度渊源的纵横交织。我国封建税法史上"税"名目的嬗变,折射出萌芽状态的"税"概念。西方国家近现代宪政精神与民主法治理念的勃兴,使得曾为天赋强权的"税"出现合法性危机。理论上时"税"概念的合宪性释解,对晚了几个世纪才出现类似危机的东方中国的"税"概念的正当性论证甚有裨益。经济学关于"税"概念的认识,对法学语境下的"税"概念发生深刻影响。只有坚守法学理论的研究立场,有选择地扬弃"税"概念的理论与制度渊源,方能建构法学语境下的"税"概念。

Concept of tax in the jurisprudence context results in the intertexture of various kinds of theoretical and institutional origin. Development of items of tax in the history of tax law of Chinese feudal society reflects concept of tax in the bud. Spirit of constitutional government and idea of democracy and rule of law in westem modem society causes tax which was ever power of talent facing with crisis of legislation. Explanation of constitutionality of concept of tax in theory is beneficial for demonstration of legitimacy of concept of tax which appears similar crisis hundreds of years later of eastern China. Recognization concerning concept of tax in Economics had made an impact on the research of tax law. Only the research position of jurisprudence is adhered to and theoretical and institutional sources are used or discarded that concept of tax can be constructed in the jurisprudence context.