民法规范进入税法的立法路径——公法与私法“接轨”的规范配置技术

The Legislation Path to Tax Law from Civil Law Norms:the Norm Allocation Techniques to Connect Public Law and Private Law

民法规范进入税法领域不可改变,也为立法实践所验证。民法和税法的"模糊地带"以及民法规范的"自治"与"管制"特质为民法规范进入税法提供了制度空间。处于私法自治的底线考虑,税法应重点引入民法中的授权一方当事人规范、授权特定第三人规范和半强制规范,同时,吸纳任意性规范和强制性规范蕴含的立法思想和"管制"资源。从当前的税收立法看,民法规范进入税法领域更适合采取设定技术,但从公法与私法"接轨"的角度审视,导引技术无疑占优,可以将其作为一种远景技术。不管何种立法技术,通过"民法规范进入税法领域"实现公法与私法的"接轨",直接考量立法者的立法技术和立法道德。

The fact that civil law norms would enter the realm of tax law is unalterable; it is al- so verified by the legislative practices. The ＂fuzzy region＂ between civil law and tax law and the specialties of ＂autonomy＂ and ＂control＂ in civil law norms have provided the institutional room for the entrance of civil law norms into tax laws. Considering the bottom line of the private law autono- my, the tax law should focus on the introduction of the one party authorization norm, the specific third party authorization norm and the semi-mandatory norm in the civil law; at the same time, the legislative ideas and the ＂controlled＂ resources contained in the arbitrary norms and mandatory norms should be absorbed. Considering the current tax legislation, it is more suitable to adopt the setting technique for the entrance of civil law norms into the realm of tax law. However, judging from angle of the integration between public law and private law, the guiding technique has surely more advan- tages, which can be accepted as a kind of long-range technology. No matter what kind of legislative technology is adopted, to realize the connection between public law and private law through the en- trance of civil law norms into the realm of tax technique and legislative ethics of the legslators. law can directly examine and weigh the legislation