税收撤销权制度之建构

On Establishment of Revocable Right of Taxation

现行《税收征收管理法》从民法中移植了撤销权制度,但规定得过于简单,缺乏可操作性,因此有必要对中国现行的税收撤销权制度进行重新梳理。从税收撤销权的法律性质是一种"以公为主,公私兼顾"的法律制度入手,基于对域内外类似制度设计的比较,笔者认为:一方面可以继续援用民法上的撤销权制度,但必须注重第三人权利的保护;另一方面增加规定"第二次纳税义务人"制度。

The Law Concerning the Administration of Tax Collection absorbed the concept of revocable right from the civil law. As the legal provision is too simple and lacks operability, it is necessary to recard the existing revocable right of taxation. Starting with defining the legal character of revocable right of taxation as a legal system of ＂giving priority to the public character but giving consideration to both the public and private characters＂. On the basis of carrying on the comparative analysis with foreign similar systems, the author brings up the ideas that the former principle is to stress on protection of the rights of a third person while continuing to invoke revocable right from the civil law, while the latter principle is to increase provisions of the second taxpayer.