论退税请求权的司法审查:《税收征收管理法》第51条的实体与程序

On Judicial Review of Tax Refund Claims:Substances and Procedures of Article 51 of the Tax Collection and Administration Law

作为税收法定原则的重要保障,退税请求权创设了纳税人就多缴、误缴的税款向税务机关请求返还的权利,其实体定位为假借民法概念的公法不当得利返还请求权。《税收征收管理法》第51条以发现多缴税款情形的不同主体进行区分,赋予不同的法律效果:若当事人发现,需在纳税三年内请求,且可以主张利息;若为税务机关发现,则无时间限制,却不支持利息返还。此区分缺乏正当性,需结合不当得利理论进行再类型化。除故意超纳的情形外,税务机关均需返还利息,纳税人应在三年之内主张的时间限制是诉讼时效,但可归责于税务机关的退税情形不在此限。退税请求之诉属于行政诉讼,但需要结合不当得利返还请求权的法理,参考民事诉讼规定对《行政诉讼法》规则进行改造。在证明责任问题上,纳税人需证明“对方受利益”“己方受损害”这两个要件,而税务机关应承担证明征税行为合法的责任。

As an important guarantee of the legal principle of taxation,the right to request a tax refund creates the taxpayer′s right to request the tax authority to return the overpaid or wrongly paid tax. Article 51 of the“Tax Collection and Administration Law”distinguishes between different subjects and gives different legal effects:If the parties find out,they need to make a request within three years of paying taxes,and they can claim interest;if they are found by the tax authorities,there is no time limit,but no interest rebate is supported. This distinction lacks legitimacy and needs to be retyped in conjunction with the theory of unjust enrichment. Except for the case of intentional overpayment,the tax authorities are required to refund the interest. The time limit that the taxpayer should claim within three years is the statute of limitations,but the tax refunds attributable to the tax authorities are not limited to this limit. The lawsuit for tax refund is an administrative lawsuit,but it is necessary to reform the rules of the Administrative Litigation Law with reference to the civil litigation regulations in combination with the legal theory of the right to claim the return of unjust enrichment. On the issue of the burden of proof,the taxpayer needs to prove the two elements of“the other party is benefited”and“the other party is harmed”,and the tax authority should bear the responsibility of proving the legality of the tax collection.