美德税收核定程序证明责任的比较及借鉴

The Comparison and Reference of the Burden of Proof in Tax Assessment Procedure in U. S. and Germany

作为英美法系和大陆法系的代表性国家,美、德借助实体法与程序法,在较高立法层次上系统地建构起完整的税收核定程序证明责任体系。二者分别以"公定力说"和"法律规范要件说"作为证明责任分配的理论基础,并结合税务案件的特点及举证能力对证明责任分配和证明标准的一般规定进行调整,以充分体现税收的公平与效率原则。目前,我国税收核定程序的证明责任制度存在诸多缺陷,比较及借鉴美国和德国的先进立法经验,对完善我国税收立法无疑具有重要意义。

As the typical countries in Anglo-American law system and continental law system, the United States and Germany, through substantive law and procedural law, both have constructed a complete burden of proof sys- tem of tax assessment procedure at a higher legislative level. ＂Authority theory＂ is the theoretical basis of the burden of proof allocation in America, while ＂the doctrine of legal elements＂ exists in Germany. Upon the char- acteristics of tax cases and the ability to present evidence, the general provisions of distribution of burden of proof and standards of proof were adjusted, in order to embody the fairness and efficiency. At present, there are many defects in the legislative systems of the burden of proof in tax assessment procedure in China. It is important to perfect Chinese legislations by comparing and using the advanced experiences of legislations of the United States and Germany for reference.