The amendment of the crime of tax evasion

Article 3 of the Criminal Law Amendment (VII) amends Article 201 of the Criminal Law to read:

"Any taxpayer who, by means of deception or concealment, makes a false tax return or fails to make a tax return, thereby evading payment of a relatively large amount of tax and accounting for not less than 10 percent of the amount of tax payable, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the amount is huge and accounts for not less than 30 percent of the tax payable, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined."

"Where a withholding agent fails to pay or underpays the amount of tax withheld or collected by means specified in the preceding paragraph, if the amount is relatively large, it shall be punished in accordance with the provisions of the preceding paragraph."

"Where the acts referred to in the preceding two paragraphs are repeatedly committed and are not dealt with, the cumulative amount shall be calculated." "Where a person commits an act referred to in the first paragraph, after the tax authorities have issued a notice of recovery according to law, pays the tax payable in arrears, pays the late fee, and has been subject to administrative punishment, he shall not be investigated for criminal responsibility; However, with the exception of those who have received criminal punishment or been given administrative punishment twice or more by the tax authorities for evading tax payment within five years."

It is generally believed that the crime of the amended article should be tax evasion. This article has many changes compared with Article 201 of the Criminal Law 97, specifically as follows:

(1) Changes in written expressions

97 The criminal law defines the acts regulated by this article as "tax evasion", and the Amendment to the Criminal Law (VII) is expressed as "tax evasion". This change in the wording implies a major change in the legislators' ideas. Our country has experienced a long feudal history, "imperial grain state tax" in people's minds of the sacred, inviolable deep-rooted. The characterization of non-payment or underpayment of taxes as "theft" is based on the traditional logic that failure to fulfill the obligation to pay taxes, failure to pay or underpay the tax due, is like stealing property from the Treasury. However, when we look closely at the relationship between the wealth of nations and the wealth of individuals, this reasoning does not seem to make much sense.

The fiscal revenue of the state mainly depends on the tax support of the citizens, so "take from the people, use for the people" has become the gold standard of the tax system. Tax evasion is only the non-payment or underpayment of part of the property legally acquired by the unit or individual to the state, which infringes only the tax collection right of the state rather than the property right of the state. This is fundamentally different from the act of "stealing" the property of the state for the purpose of illegal possession. Therefore, the criminal law stipulates this crime in the section of "Crime of endangering Tax collection and Administration", but not in the property crime, and provides a higher crime standard and a lighter statutory penalty than the property crime. The expression of "evading tax payment" in Amendment (VII) to the Criminal Law is more scientific, which also shows the legislature's respect for citizens' rights and scientific understanding and positioning of the relationship between citizens and the state.

What needs to be noted here is the distinction between the revised crime of tax evasion (evasion of unpaid taxes) and the crime of evasion of recovery of unpaid taxes in Article 203 of the Criminal law, both of which are manifested as evasion of a certain obligation, and are somewhat similar in language expression, which is easy to cause confusion and misunderstanding. However, there are important differences between the two in the conditions of crime, the subject of behavior, the object of behavior and the means, which should be distinguished in the judicial determination.

(2) Changes in behavior patterns

On the change of the behavior of tax evasion crime, there are mainly two aspects.

First, the mode of behavior changes from enumeration to generalization. The revised provisions are stated as "taxpayers who make false tax returns or do not make tax returns by means of deception or concealment, and avoid paying taxes..." The reason why this amendment is made is that with the development of economy and society, the crime of tax evasion nowadays presents the characteristics of diversified subjects, diversified criminal means and intelligent. The concrete forms of tax evasion in judicial practice are various, and each behavior often contains several concrete ways of tax evasion. 97 The enumeration of tax evasion in criminal law and judicial interpretation has been unable to cover the behavior pattern in practice, resulting in many tax evasion acts with serious social harm cannot be applied to criminal sanctions, making the criminal law unable to combat tax evasion crimes.

In order to get rid of this dilemma, the amendment directly stipulates the essential characteristics of the crime of tax evasion - failure to pay or underpay taxes by false means. This amendment not only makes the expression of the article more concise, but also enables the judicial organs to free themselves from the complicated identification of behavior patterns and shift their attention from the identification of behavior patterns to the identification of results. Because the revised provisions can cover almost all forms of behavior, in fact, as long as the perpetrator takes certain means to intentionally false declaration or not declaration, it can be identified as tax evasion crime if the criminal standard is met, saving a lot of judicial resources.

Secondly, the behavior setting of "being given two administrative penalties by tax authorities for tax evasion and tax evasion" was abolished. For this provision in 97 criminal Law, people have been divided in understanding, such as "two administrative penalties" refers to the penalty given by the same administrative organ or the penalty given by different organs, what is the time limit between "two", "administrative penalties" should have a specific amount or subjective restrictions, and so on. Although the 2002 "Judicial Interpretation" clearly stipulates that "within two years because of tax evasion received two administrative penalties, and tax evasion and the amount of more than 10,000 yuan, should be convicted and punished for tax evasion." But other confusions remain.

This amendment simply cancels this crime condition, and only stipulates the double calculation standard of amount plus proportion in terms of the conditions for the establishment of a crime. The "twice administrative punishment" as the "first offender exemption" exclusion condition, and added a "five years" period limit.

(3) Changes in the amount standard for the offence

As a kind of amount crime, tax evasion continues to use the previous double calculation standard of amount plus proportion. Although the theoretical community has been criticized for the double calculation standard of the amount plus proportion, the revision did not cancel the requirement for the proportion. This is mainly due to the fact that the situation of taxpayers who do not fulfill their tax obligations is relatively complicated, and the scale and amount of tax payable vary greatly among different tax paying enterprises, so it is more appropriate to take the amount of tax evasion and the proportion of tax payable by the amount of tax evasion as the criterion for conviction. This has also been done in judicial practice for many years, so it has not been revised.

The revision does not specify the specific starting amount. Mainly considering that after more than ten years of development, China's economic level has been greatly improved, "ten thousand yuan" and "thirty thousand yuan" in 1997 is not the same as the value reflected now. The threshold of tax evasion is not suitable for the current level of social and economic development. Moreover, in economic life, the situation of tax evasion is very complicated, the same amount of tax evasion in different periods of the degree of harm to the society, so the specific amount of tax evasion in the criminal law does not make provisions, by the judicial organs according to the actual situation to make judicial interpretation and timely adjustment. This is conducive to the realization of crime balance and criminal justice, but also can maintain the relative stability and standardization of criminal law.

When determining the specific amount standard, the judicial organ shall pay attention to the scientific and strict setting of the amount standard, and maintain the coordination and consistency between the amount standard and the proportion standard and the close connection between each sentencing grade. 97 Criminal law in this respect there are omissions, there are two gaps between the two sentencing levels set by the law. Therefore, when the judicial organs re-establish the amount standard, they should learn the lessons of 97 criminal law, avoid the appearance of sentencing gaps, and make criminal legislation more scientific and perfect. For the calculation and determination of the amount of tax evasion and the proportion of tax payable, before the promulgation of a new judicial interpretation, it should still refer to the provisions of the Judicial Interpretation promulgated in 2002.

(4) Changes in the conditions of criminalization of withholding agents

97 The criminal law applies the same criminal establishment criteria to withholding agents and taxpayers, and according to the provisions of the Criminal Law Amendment (VII), withholding agents do not pay or underpay the tax withheld or collected, if the amount is large, it can constitute the crime of tax evasion, and there is no limit on proportion. Hillhouse believes that making such modifications is to take into account the particularity of withholding agents and thus distinguish them from taxpayers.

The double calculation standard of amount plus proportion is set for tax evasion crime in the criminal law in order to limit the crime circle, and the requirement of proportion is used to exclude some tax evasion behaviors that meet the amount standard from the criminal scope. Compared with taxpayers, withholding agents have special characteristics. In economic life, the taxable income of some taxpayers is relatively scattered. If all the tax authorities collect it, the cost is too large and there are more omissions. In order to ensure the collection and timely storage of this tax, laws and administrative regulations provide for the withholding of this tax at the source.

Withholding agents are divided into two categories: one is withholding agent; One is the collection agent. Withholding agent is the special intermediary of the state in the process of tax collection, is the link between the state and the taxpayer, and has great significance for the state to achieve tax revenue. Although the withholding agent and the taxpayer are in the same legal status in the tax payment stage, the tax evasion behavior of the withholding agent and the tax evasion behavior of the taxpayer has certain differences in social harm, so it is reasonable to set the criminal conditions wider than that of the taxpayer. Here's why:

First of all, this difference is due to the fact that the special obligation of the withholding agent is derived from the compensatory nature of the withholding behavior. The withholding obligation is not a taxpayer, but a special obligation brought about by the compulsory entrustment of the law, and this special obligation has obtained corresponding consideration, which is different from the tax obligation of ordinary taxpayers. The taxpayer is simply trying to evade the obligation to pay taxes, while the withholding agent is violating its fiduciary duty by taking for himself taxes that have already been paid to the state by others. Therefore, the same act of tax evasion, the withholding agent shows a stronger subjective vicious and condemnable.

Secondly, the withholding agent's evasion of tax payment infringes on the double object. Withholding collection is a compound structure with tripartite subjects and two-fold legal relations. Withholding agent is actually at the core of the two-fold legal relationship between the state and the taxpayer. Once it implements the behavior of evading tax payment, it will infringe on two objects, one is the national tax collection system, and the other is the national property rights. The tax obtained from the taxpayer by the withholding agent based on the mandatory provisions of the law should be part of the national tax revenue, rather than the income of the withholding agent, at this time, the withholding agent only keeps the tax on behalf of the State and has the obligation to return it. If the withholding agent has withheld the tax but does not turn it over to the state Treasury, it is an embezzlement of the state tax and an infringement of the state property rights. Therefore, it is reasonable to apply the same amount standard to the criminalization of the act as to other property crimes.

Thirdly, the application of proportional standard restrictions to withholding agents is not conducive to combating crime. In practice, because withholding agents, especially some large enterprises, need to withhold and collect more than one tax items, such as income tax and business tax, the number of taxpayers who need to withhold and pay is also relatively large, such as employees of their own units, as well as units and individuals who temporarily obtain income from their units. The amount of tax that should be withheld is very large, and some withholding agents who do not pay or underpay the absolute amount of tax but do not meet the 10% standard are not penalized, which is not conducive to combating crime.

In addition, the limitation of the proportion of taxpayers set by the criminal law is to achieve the substantive equality of the application of the criminal law between large and small enterprises, because large enterprises have a large scale of production and operation, and the amount of tax evasion between large and small enterprises may be greatly different under the same subjective malice. The tax withheld by the withholding agent generally has little to do with its own production and operation, and there is no connection between the various tax items withheld and paid. Therefore, it is unreasonable to calculate the proportion based on the overall tax payable or the tax payable by withholding and paying.

(5) Changes in fines

97 In the criminal law, the penalty set by the double proportion of the fine system is adopted, "and the amount of tax evasion is not less than one times but not more than five times the fine", "Amendment to the Criminal Law (VII)" only provides that "and fine". This amendment gives greater discretion to the judicial authorities and is conducive to the balance of cases. Because the specific situation of tax evasion cases in practice is very complex, although the uniform fine allocation is conducive to the clarity of the law, it may bring injustice to the case, such as the evasion of the same amount of tax, on the basis of the crime, the fine for large-scale enterprises may be only a fraction of the penny, and for small enterprises may be bankrupt. This will lead to more social problems such as layoffs. Therefore, it is necessary to analyze the cases of tax evasion and impose a fine.

However, we must pay attention to the restriction and supervision of judicial discretion, once the sentencing power of fine is abused, it will violate the legitimate rights and interests of criminal suspects. Therefore, we should start from the past judicial experience and practical needs, sum up the corresponding reference standard of fine penalty, so as to prevent the application of fine penalty from one extreme to another extreme.

Second, the identification of "first offender immunity"

Article 3, paragraph 4, of the Amendment to the Criminal Law (VII) provides that "where there is an act of the first paragraph, after the tax authorities have issued a notice of recovery according to law, the tax payable is paid in arrearage, the late fee is paid, and the administrative penalty has been imposed, criminal responsibility shall not be investigated. However, those who have received criminal punishment or been given administrative punishment twice or more by the tax authorities within five years for evading taxes are excluded." This provision is widely seen as an exemption for first-time offenders who commit tax evasion.

The decriminalization of the conditional treatment of the crime of tax evasion in the criminal law takes into account that the main purpose of combating the crime of tax evasion is to maintain the tax collection and administration order and ensure the national tax revenue. For first-time offenders who actively pay taxes and late fees after being pointed out by the tax authorities, fulfill their tax obligations and accept administrative penalties, they may no longer be investigated for criminal responsibility as crimes. This treatment can better reflect the criminal policy of combining leniency with severity.

In this way, the scope of the crime of tax evasion is appropriately narrowed through decriminalization, and the behavior constituting the crime of tax evasion is reasonably restricted while protecting the tax interests of the state. On the one hand, it can encourage enterprises and individuals suspected of evading tax to take the initiative to pay taxes, and on the other hand, it can also reduce the inspection cost of tax authorities. In addition, from a macro point of view, the first offender exemption can also give the perpetrator the opportunity to repent, maintain social stability, consolidate and stabilize the tax source.

(1) The scope of application of the first offender's exemption from liability

According to the Amendment (VII), only when the perpetrator's behavior constitutes the crime of tax evasion stipulated in the criminal law can the provisions of the exemption of the first offender be applied, and the following issues should be paid attention to when specifically examining the scope of application of the exemption of the first offender:

1. Whether the first offense exemption is applicable to the withholding agent. Article 3, paragraph 4, of the Amendment to the Criminal Law (VII) stipulates that taxpayers who have acted in accordance with the provisions of this paragraph shall not be investigated for criminal responsibility. From the overall expression of the provisions, it should be considered that the withholding agent does not apply to the first offense exemption. As mentioned above, the withholding agent's failure to pay or underpay the withheld and collected taxes actually has more serious social harm than the taxpayer's evasion of tax payment, which infringes on the national tax collection system and the national property rights, while the latter only infringes on the national tax collection and management system. This essential difference determines that the withholding agent cannot be exempted from liability for the first offense.

In addition, if the withholding agent can be exempted from liability after taking remedial measures, this can only be used as a sentencing circumstance without affecting the criminal policy reflected in the conviction, which affects the coordination and consistency of the criminal policy in the criminal law as a whole.

From the modification of the criminal conditions of withholding agents in this amendment, it can be seen that lawmakers have a strict attitude towards the behavior of withholding agents who do not pay, underpay the tax withheld and collected. The non-application of this exemption to first-time offenders is a further manifestation of this attitude.

(2) Whether the tax evasion provided for in Article 204 (2) applies. Article 204, paragraph 2, of the current Criminal Law stipulates that "a taxpayer who, after paying the tax, defrauds the tax paid by deception as provided for in the preceding paragraph shall be convicted and punished in accordance with the crime of tax evasion." Hillhouse believes that those who use the method of defrauding the tax paid should also apply to the exemption of first-time offenders. If the perpetrator's conduct complies with the provisions of paragraph 2 of Article 204, it means that the perpetrator has taken "false export declaration or other deceptive means" to defraud the tax paid.

According to the seventh Amendment to the Criminal Law, "taxpayers resort to deception or concealment to make false declarations or fail to make declarations to evade payment..." Constitutes tax evasion. The "deception and concealment means" stipulated in this article may include the behavior of evading tax payment by fraudulently obtaining export tax refund. The so-called "deception" refers to the situation in which the tax authority misleads the perpetrator to have tax reduction or exemption by concealing the truth or creating false images. Therefore, under the provisions of the Criminal Law Amendment (VII), even without the provisions of paragraph 2 of Article 204, the act of cheating to obtain the tax paid has already met the criminal composition of the crime of tax evasion.

3. Whether "substantial amount" applies to first-time offenders. Article 3, paragraph 4, of the Criminal Law Amendment (VII) merely provides that "there is an act in paragraph 1..." The conduct provided for in paragraph 1 is differentiated according to the amount standard, so the question of whether it is applicable to a large amount of tax evasion for a first offense is bound to arise. Hillhouse believes that from the literal understanding and logical analysis of the provisions, even if the amount of the first offender is huge, the first offender's exemption should be applied. Because the large amount and the huge amount have actually constituted the crime of tax evasion, only the distinction is made according to the different amount of tax evasion to reflect the crime and punishment. The quality of the crime is the same between the large amount and the huge amount, only the quantity of the penalty is different.

On the contrary, the prerequisite for the application of the exemption of the first offense is that the perpetrator has carried out the act that is in line with the crime of tax evasion, and there is no difference between the large amount and the huge amount of tax evasion. Of course, the rationality of considering only the quality of crime without distinguishing the quantity of social harm is questionable, because it will encourage crime in a disguised way. During the deliberation of Amendment (VII), some members also mentioned that if a large amount of tax is seriously evaded, criminal responsibility will not be investigated after the due tax is paid, which is not conducive to cracking down on serious tax evasion crimes, and suggested that this paragraph should not be applied to serious and huge acts.

However, in the later further amendments, there is no clear provision on whether the huge amount of exemption is applicable to the first offender. It can be considered that through judicial interpretation, the premise of the first offender's exemption can be limited to a certain extent, and the corresponding amount or circumstances can be added, so as to achieve no waste.

(2) Handling the relationship between administrative procedures and criminal judicial procedures

Article 3, paragraph 4, of the Amendment to the Criminal Law (VII) stipulates that "where a person commits an act referred to in the first paragraph, after the tax authorities have issued a notice of recovery, pays the tax due, pays the late fee, and has been subject to administrative punishment, he shall not be investigated for criminal responsibility; ..." This gives greater authority to the executive agency, and whether an act constituting a crime of tax evasion is criminally liable depends to a large extent on whether the executive agency has undertaken the administrative act provided for in this paragraph. This kind of provision of criminal law makes the power of administrative organs have new connotation and significance, in fact, it is an expansion of administrative power to judicial power. Therefore, it is necessary to discuss how to deal with the relationship between administrative punishment and criminal punishment, administrative procedure and judicial procedure after modification, so as to achieve the close connection and coordination between administrative power and judicial power.

Before the revision of this article, the relationship between administrative punishment and criminal punishment of tax evasion cases suspected of constituting crimes found by tax administrative authorities in the process of tax collection and administration has always been controversial. Some scholars maintain that cases suspected of crimes should be transferred to judicial organs for criminal sanctions, and then decide whether the tax authorities should give administrative punishment according to the handling of judicial organs. The principle of "priority of criminal punishment". Some scholars believe that the tax authorities can first make an administrative penalty decision and then transfer it to the judicial organs.

Practice also varies. According to the revised provisions, the relevant administrative acts of administrative organs are the basis for judging whether to investigate criminal responsibility, which is of great significance to criminal suspects. Therefore, Hillhouse believes that when dealing with the relationship between administrative procedures and judicial procedures, administrative procedures should be prescribed by law as the pre-procedure of judicial procedures. That is, all cases that meet the conditions of exemption for first-time offenders are first issued by the administrative organ to pay a notice, make an administrative penalty, and decide whether to pursue criminal responsibility according to the suspect's attitude toward the above administrative acts. Thus, the certainty of starting the first offender's exemption is guaranteed through the procedure setting, which has at least the following three advantages:

First of all, it is conducive to the certainty of the application of criminal law and the protection of human rights. According to the revised provisions of the criminal law, the application of the exemption of the first offender largely depends on the relevant administrative acts of the administrative organs. If no specific and clear provisions are made, the administrative organs have great discretion in handling such cases, then the uncertainty of the application of the criminal law will be increased, which is not conducive to the protection of human rights. For example, in practice, there may be such a situation, for the case discovered by the judicial organs, the tax authorities refuse to make relevant administrative acts on the grounds that the tax audit of the unit or individual has been completed, which will make the provisions of the exemption of first offenders into an embarrassment, so administrative punishment should be taken as the necessary procedure of criminal punishment.

Secondly, it is beneficial to ensure the equality of the application of criminal law. If the exercise of the power of administrative organs is not clearly stipulated, the different ways of administrative disposal may affect the same behavior in practice, and the different characterization of crime and non-crime in the same situation. For example, if an enterprise evaded taxes and the tax authorities handed over the clues directly to the public security organs instead of pursuing them, the premise of the enterprise losing the right to immunity would actually be treated as a tax crime. And another enterprise with the same behavior and similar circumstances, the tax authority notifies it to make a payment, and avoids criminal punishment after the enterprise makes a payment because it meets the exemption clause set up. Therefore, administrative procedure should be mandatory as the necessary procedure of judicial procedure, so as to avoid the unequal application of law.

Thirdly, it will not make the system of first offender exemption null and void. A good system design can only play a positive role in the specific operation process. If the administrative organ can arbitrarily decide whether to exercise the administrative act stipulated in Article 3 (4) of the Criminal Law Amendment (VII), then in practice, in some cases, the administrative organ may decide not to take the relevant administrative act due to various factors. In this way, it is impossible to start the procedure of exempting the first offender, thus making the system useless and unable to play its due role.

In the process of procedural connection between the tax authority and the public security organ, for the suspected acts of tax evasion discovered by the tax authority in the administration of tax collection, the administrative organ shall issue a notice of supplementary payment, recover the late payment fee and make an administrative penalty decision according to law. Regardless of the actor's attitude towards the administrative acts above the administrative organs, the administrative organs have the obligation to transfer the tax evasion suspected of constituting a crime to the judicial organs for handling. Although the administrative acts of the administrative organs and the attitude of the perpetrator towards these administrative acts largely determine whether the perpetrator's acts are investigated for criminal responsibility, whether or not the perpetrator is investigated for criminal responsibility is a matter of criminal justice, involving the exercise of judicial power, and should be judged by the specialized organs for criminal procedure.

Tax authorities are administrative law enforcement agencies responsible for tax collection and administration, and are endowed by law with relatively complete tax inspection and disposal powers, such as the power to take tax preservation and enforcement measures, but tax administrative authorities have no power to decide whether to pursue criminal responsibility for perpetrators who have constituted crimes. Even if the perpetrator's conduct fully meets the conditions for first offender immunity, the tax authorities are still obliged to transfer the perpetrator to the criminal justice authorities for handling, rather than directly deciding not to pursue criminal responsibility. The tax authority shall transfer the case materials to the public security organ, and then the public security organ shall review and decide whether to file a case, and if the conditions of exemption for first-time offenders are met, the case shall not be filed, so as to exempt them from criminal responsibility. And the public security organs decided not to file cases should be submitted to the procuratorate for the record, so that the procuratorial organs effectively play their supervisory functions. For those who do not meet the conditions of immunity for the first offense, they shall be directly transferred to the procuratorial organ for review and prosecution.

For the suspected acts of tax evasion discovered by the public security organs, the public security organs shall notify the tax authorities after receiving the clues and deciding to file a case, and the tax administrative authorities shall support and cooperate with the investigation work of the public security organs. If the investigation concludes that it constitutes a crime and the exemption of the first offender can be applied, the case shall be transferred to the tax administrative authority, which shall first implement the relevant administrative acts, at this time, the tax authority shall issue a notice of recovery and make administrative penalties according to law. For those who meet the conditions of exemption from liability for the first offense, the case shall be cancelled, the criminal responsibility shall be exempted, and the case materials shall be submitted to the procuratorial organ for record and supervision. For those who do not meet the conditions of immunity for the first offense, they shall be transferred for review and prosecution.

(3) The understanding of "has been subject to administrative punishment"

It should be considered that "has been subjected to administrative punishment" means that the perpetrator accepts the decision of administrative punishment, rather than objectively receiving the penalty decision made by the administrative organ. As discussed above, the handling of administrative procedures should be regarded as the pre-procedure for entering judicial procedures, so objectively the actor will be subject to administrative punishment, if the "has been subject to administrative punishment" is understood to be objectively punished without any practical significance. Moreover, the objective of receiving administrative punishment can not reflect the active remedy and repentance of the perpetrator of the crime, which is inconsistent with the purpose of establishing the first offender's exemption from liability.

The acceptance of administrative punishment should be understood from both subjective and objective aspects, the lack of any aspect can not exempt from criminal responsibility. The actor must subjectively recognize and be willing to fulfill the content of administrative punishment, and objectively take the initiative to fulfill the obligations stipulated in the relevant administrative act within the prescribed time limit. If the perpetrator subjectively accepts the punishment, but objectively does not have the ability to perform the content of the punishment, it is still necessary to investigate the criminal responsibility, and its subjective repentance attitude can be used as the circumstances of a lighter sentence. Because the original intention of the establishment of the first offender exemption is to encourage the perpetrator who has constituted a crime to take the initiative to remedy the harmful results caused by tax evasion and reduce the tax loss of the state, if the perpetrator is unable to restore the harmful consequences, he should be investigated for criminal responsibility.

(4) The right of administrative relief under the exemption of the first offender

The actions of the administrative organ in the first offender exemption should be "issuing a notice of payment, pursuing the payment of late fees, and making administrative penalties". For the above acts of the tax authority under normal circumstances, according to the provisions of the Tax Administration Law and other laws, the administrative counterpart has the right to file administrative reconsideration or administrative litigation. However, whether the suspects enjoy these rights and how to exercise these rights under the circumstance of first offense exemption need to be further studied.

In the process of deliberation and amendment of the draft, the Law Committee conducted a special study on the issue of whether parties suspected of constituting the crime of tax evasion can file an administrative lawsuit against the "administrative penalty" (fine decision) of the tax authority, and unanimously concluded that: Since paragraph 4 of the Amendment (VII) is a special provision for lenient treatment of tax evaders who have already committed crimes and should have been investigated for criminal responsibility, there is no question of whether the parties to tax evasion pay the taxes and late fees first, and then fight administrative litigation with the tax authorities on whether the so-called administrative penalties are necessary and whether the fines are reasonable. Hillhouse thinks this view is ill-considered.

First of all, since the case of first offender exemption has generally not entered the criminal trial procedure when the administrative organ makes the corresponding administrative act, there may be different opinions between the criminal suspect and the recognized organ on the amount of tax evasion, especially in the case of direct punishment by the tax authority without investigation by the public security organ, which is not the judicial organ. The difference between tax evasion and tax evasion is not easy for the tax authorities to accurately grasp, so it is inevitable and understandable that the amount of suspected crimes identified by the tax authorities is different from the actual situation. The amount of the suspected crime is of great significance to the identification of the crime of tax evasion, so the suspect should be given the right to seek relief.

Secondly, according to the provisions of the Tax Administration Law, for tax evasion, the administrative organs give fines of more than 50% and less than 5 times the amount of tax evasion. It can be seen that the administrative organs have great discretion in making the decision of fine. If the relative parties are not allowed to question the rationality of the fine and the right to seek relief is granted, the abuse of the administrative organs' power will be difficult to control. It is very easy to cause infringement on the legitimate rights and interests of citizens.

Therefore, Hillhouse believes that in the case of the first offender's exemption from liability, the criminal suspects should still be given the corresponding right of administrative relief, but the way and form of exercise are different from the general right of administrative relief.

First of all, for the criminal suspects who only object to the fine of the administrative organ and have no objection to the amount of tax evasion identified, they should enjoy the right of administrative reconsideration, and implement the principle of administrative procedure priority, that is, after the administrative reconsideration organ makes a reconsideration decision, according to the criminal suspect's attitude toward the punishment decision after reconsideration to decide whether to pursue criminal responsibility. Because the criminal suspect only disagrees with the amount of the fine, it will not have a negative impact on the investigation work because of administrative reconsideration, in order to improve the efficiency of handling cases, the law can make special provisions on the reconsideration period of such cases. Since the administrative litigation only deals with the legality of the relevant administrative act and does not deal with the rationality of the issue, there is no issue of bringing an administrative lawsuit on the rationality of the fine.

Secondly, if there is an objection to the determined amount of tax evasion, and the criminal suspect does not accept the administrative punishment for this reason, it shall be handled in the criminal judicial procedure, and the specific amount of tax evasion shall be determined in the judicial procedure.

If, after investigation or trial, it is considered that the amount of tax evasion previously determined is incorrect and does not actually constitute a crime, the decision not to file a case shall be made at the filing stage, the decision not to prosecute shall be made at the review and prosecution stage, and the trial stage shall be acquitted.

For an act that is suspected to constitute the crime of tax evasion determined by the judicial organ, if the amount of tax evasion is found to be greater than or equal to the amount previously determined by the criminal trial, the criminal suspect shall be considered to constitute the crime of tax evasion, and the provision of exemption from liability for the first offender can no longer be applied, and shall be investigated for criminal responsibility. If the amount of tax evaded by the criminal trial is less than the amount previously determined, the criminal suspect shall be given the right to take the initiative to pay the tax, late payment and fine without being investigated for criminal responsibility, and if the criminal suspect's behavior meets the conditions of immunity for the first offense, he shall not be investigated for criminal responsibility.

(5) Exclusionary conditions for first offender immunity

The Criminal Law Amendment (VII) stipulates that those who have received criminal punishment for evading tax payment or have been given administrative punishment by tax authorities twice or more within five years do not apply to the exemption of first-time offenders, which is an exception condition for the exemption of first-time offenders.

When understanding "more than two administrative penalties", it should be noted that, first of all, the tax authorities that give penalties in "being given more than two administrative penalties by tax authorities" are not required to be in the same category. Because China implements the tax sharing system, the administrative penalty on tax may be made by the state tax authority or the local tax authority. Therefore, there may be two administrative penalties for evading tax, and the two administrative penalties are made by the State tax and the local tax authority respectively, which does not affect the identification of "two administrative penalties". Because whether it is punished by the national tax or local tax authorities, it is because the behavior objectively infringes on the national tax system. In order to effectively combat the crime of tax evasion, it is necessary to establish a perfect monitoring system, establish a unified information network among various tax authorities, record and share information on the tax evasion behavior of the actor, and prevent the actor from escaping the legal net due to information communication barriers.

Secondly, the "two administrative penalties" imposed by the perpetrator should be specifically limited through judicial interpretation, because according to China's "Tax Collection and Administration Law", there is no minimum administrative penalty for the tax evasion of the relative person, and it does not distinguish the subjective intention or fault of the perpetrator, as long as there is no payment or underpayment of tax behavior is found, administrative penalties should be given. If the cause of the "two administrative penalties" is not made subjective vicious, the degree of illegal behavior of the distinction, it is easy to cause the unfair application of law, so it is necessary to do a certain limit to the "two administrative penalties".

(6) The legal effect of first offender immunity

After the perpetrator has carried out the acts constituting the crime of tax evasion, there are acts in line with the requirements of Article 3, paragraph 4, of the Criminal Law Amendment (VII), that is, "shall not be investigated for criminal responsibility", which should be understood as not being considered as a crime. This is different from the provisions of the Supreme People's Court's Interpretation on Several Issues concerning the Specific Application of the Law in the Trial of Criminal Cases of Tax Evasion and Resistance in 2002, the third paragraph of Article 1 of the judicial interpretation stipulates that "the act of implementing the first and second paragraphs of this article (that is, the criminal act of tax evasion by taxpayers and withholding agents), the amount of tax evasion is less than 50,000 yuan." A taxpayer or withholding agent who, before the public security organ files a case for investigation, has paid the tax payable and the late payment fine in full, and whose crime is minor and does not require a criminal penalty, may be exempted from criminal punishment." According to the judicial interpretation, the behavior that meets the conditions stipulated by it is still regarded as a criminal offense, but the non-criminal punishment method is used to replace the penalty.

Therefore, for the same acts constituting tax evasion crime, after the application of the first offender exemption provisions of the Criminal Law Amendment (VII), if there is another crime of tax evasion within five years, the first offender exemption provisions may still be applied again, because the previous punishment is not regarded as a criminal punishment. If the provisions of the judicial interpretation are applied, the second act will constitute a crime under the same circumstances, and it is obvious that the provisions of the Criminal Law Amendment (VII) are more lenient than the judicial interpretation.