论税收滞纳金的法律性质、适用情形与核定机制

Study on the Legal Nature,Applied Rule and Determining Mechanism of Tax Overdue Fine

税收滞纳金是税收征收管理的重要措施之一。税收滞纳金的法律性质应界定为行政执行罚为主兼具损害赔偿。其适用情形不仅应考虑时间维度上的"未按照规定期限",还应结合主观过错、行为性质及义务主体等因素予以区别对待。税收滞纳金的核定应采取分段加收率,起止时间应考虑支付方式的差异,并将税务稽查、刑事侦查及行政复议、行政诉讼设定为除外期间。

Tax overdue fine is one of the important measures of tax collection and management. The legal nature of the tax overdue fine should be define as an administrative enforcement penalty as well as the compensation for damages. Its applied rule not only should be considered the time dimension ＂over the prescribed time limit＂, but also be treated differentIy combining with main factors such as subjective fault, nature of action and the obligation body, Etc. The determining of tax overdue fine can be taken the section surcharge rate, and the differences in methods of payment should be considered when we determine the range of beginning and ending time. Also, it should set the tax exclusive periods during tax audit criminal investigation, administrative reconsideration and administrative litigation.