论我国不申报行为的逃税罪刑事立法完善--基于意大利不申报罪刑事立法及适用的启示

Perfection of Chinese Legislation on Crime of Tax Evasion Concerning the Failure to File A Tax Return:A Study Based on the Italian Legislation on Crime of Related Tax Evasion and Its Application

我国现行逃税罪刑事立法存在犯罪主体范围狭小、扣缴义务人与纳税人定罪量刑的不公平差别对待、主观要件缺乏逃税目的的明确规定、逃税金额的累计规则不当,以及不申报逃税行为的界定过于简化、针对不申报逃税行为的入罪门槛相对过低、刑事处罚相对过重等问题,由此形成逃税定罪处罚立法的结构性失衡。《刑法修正案(七)》出台至今已经过去十多年,我国税收治理现代化、税收法治建设也不断取得重大进展,在此背景下,可借鉴意大利不申报(逃税)罪刑事立法及相关司法判决和学说观点。我国税收犯罪刑事立法理念应当转变为以打击逃税等税收实害行为为基准,而逃税犯罪刑事立法需要在严密刑事打击法网、充分维护国库利益的同时,强调刑法谦抑性原则并贯彻罪刑相适应原则。我国不申报行为的逃税罪立法完善具体包括以具有申报义务来限定犯罪主体、限制逃税比例入罪门槛的应用范围、原则上不加总不同税种的逃税金额、主观要件增加逃税目的、消除扣(收)缴义务人与纳税人在逃税定罪处罚方面的差异,以及针对不申报逃税行为明确界定构成条件、在入罪门槛与处罚标准上差别化对待等。

There are some problems in the current legislation on crime of tax evasion in China,such as the narrow scope of crime subject,the unfair differential treatment between the tax withholder and the taxpayer in terms of the crimination and the punishment,the lack of clear provisions on the purpose of tax evasion in subjective elements,the improper accumulation rules of the amount of taxes evaded,and with respect to the behavior of tax evasion concerning the failure to file a tax return,the oversimplified definition,the relatively lower threshold for crimination,the relatively heavier punishment,and correspondingly arises the problem of the structural imbalance in the legislation at issue.It has been more than 10 years since the Amendment(VII)to the Chinese Criminal Law was introduced,and China has made continuously significant progress in the modernization of tax governance and in the construction of rule of tax law.Under this background,and drawing lessons from Italian legislation on the crime of tax evasion and the related judicial judgments and theories,the legislative idea of Chinese tax criminal law should change,i.e.it is necessary to combat criminally only the illegal acts which cause directly the loss of tax revenues,and the legislation on crime of tax evasion needs to on the one hand strictly crack down on the criminal network and fully safeguard the interests of the state treasury and on the other hand emphasize the modest and restrained principle of criminal law and implement the principle of suiting punishment to crime.Therefore,the Chinese legislation on crime of tax evasion concerning the willful failure to file a tax return should be modified in the following aspects:limiting the crime subject to the persons who are obliged to file a tax return,limiting the scope of application of threshold for crimination composed of the percent of tax evasion,not summing in principle the amounts of taxes evaded coming from different types of taxes,adding the purpose of tax evasion in subjective element,eliminating the differences between the tax withholder and the taxpayer in terms of the crimination and the punishment,and with respect to the behavior of tax evasion concerning the failure to file a tax return,clearly defining the specific constitutive elements and specializing the threshold for crimination and punishment criterion.