税收构成要件理论的反思与再造

Reflections on and Reconstruction of The Theory of Constitutive Elements of Taxation

税收构成要件不仅具有构成要件的普适性能,而且保有税法学科的独特秉性。这一复合性特质使其内生税收法定、法益保障和税际识别三大本体机能。然而,税收构成要件基本概念、范畴与合理的逻辑结构缺失等体系缺陷致使其本体机能不断弱化,已然偏离了税收构成理论预设的轨道,使其指引税收法治建设的工具价值大打折扣。以可税性阶层与应税性阶层为体系驱动,以定性构成要件与定量构成要件为阶层分解,以定性要素系统与定量要素系统为具体展开,以可税阻却事由与应税阻却事由为体系补足的阶层税收构成理论,应当作为税法体系建造与实务推进的基石理论和基准范式。税收立法、税法实施和税法解释均可围绕可税性识别和应税性计量两大阶层展开。

Constitutive elements of taxation share the common characteristics with other constitutive elements while exhibits the unique characteristics of tax law.This mixed nature equips it with three major functions,namely statutory taxation,protection of legal interests,and identification of different taxes.However,defects in the system of constitutive elements of taxation,such as the absence of basic concepts,scope and reasonable logic,have weakened the functions of the system,caused it to deviate from the track preset by the theory of constitutive elements,and greatly reduced its instrumental value as guidance for the establishment of rule of law in the field of taxation.The author of this article suggests that the theory of constitutive elements of taxation should take the identification of eligible and necessary classes for imposing tax as its systematic driving force,qualitative and quantitative element systems as its concrete subjects of analysis,and the system of eligible and necessary causes for tax exemption as its supplements.This theory reflects the general principle of constitutive elements of taxation,meets the actual needs of tax practice,incorporates the special nature of tax law,and strengthens the three functions of constitutive elements of taxation.According to this theory,qualitative and quantitative analyses are two crucial parts of the adoption,enforcement and interpretation of tax law and reasonable assessment of taxation can be made on any economic fact through the answering of the three core questions,namely whether it is taxable,what kind of tax should be levied and how much tax should be levied,in the two-step process of transaction identification and tax evaluation.