On the administrative punishment and the criminal procedure related tax related cases (Reprint)

On the administrative punishment and the criminal procedure related tax related cases

Dai Peng

(Chinese People's Public Security University Beijing 100038)

　　Although the cases related to tobacco and tax related cases, but this article for our comprehensive understanding has a strong reference for the administrative punishment and the criminal procedure relationship.

Abstract: the convergence problem of public security organs are often involved in the administrative punishment and the criminal procedure in the handling of criminal cases involving in. The relationship between administrative penalty and criminal cases related to punishment, administrative reconsideration and criminal litigation, tax and money, tax evidence and criminal evidence is analyzed, and points out that should be paid attention to in the administrative penalty and the criminal procedure in question.

Keywords: the cases related to administrative punishment; criminal procedure

　　

At present, the public security organ for tax related criminal cases have quite one part comes from the tax authorities of the transfer, and the transferred to the public security organ, the tax authorities usually have been or are being carried on the administrative punishment. Therefore, the public security organs in dealing with such tax related crimes are often related to administrative penalty and the criminal procedure problems. The tax authorities will tax the case to the public security organs before, should make administrative penalties on the parties, public security organs have the right to tax illegal behavior of the parties to an administrative penalty; the public security organs for recovery of tax related criminal cases of taxes, the nature is the money or tax; tax authorities for evidential materials obtained in the investigation of tax violation in the public security organs, which can be used as criminal evidence. For the problems and so on, the controversy between the public security and taxation organs, procuratorial organs and people's courts, affects the tax related criminal cases. This paper attempts to make an analysis, to learn from colleagues.

One, administrative penalty and criminal punishment

(a) for tax related criminal cases, the tax authorities have the right to punish

Some people think, tax related criminal cases before transferred to public security organs, must be made by the tax authorities of administrative punishment, the public security authorities to find these crimes should be by the tax authorities of administrative punishment, then, can the public security organs on file for investigation. The reason is:

1 in practice, the tax law cases accounted for a larger proportion of tax related criminal cases, and only a little part, and tax related crime, first is the tax illegal behavior, so the unified by the tax authorities to be punished, more convenient operation. In addition, limit tax cases of illegal and crime is often the amount, scale, and steal that tax evasion amount, proportion, professional strong, the public security organ at present does not have the professional personnel, not equal to. [1]

2 the tax authorities to punishment, punishment is not equal to not be transferred, after the transfer, does not affect the investigation of public security organs.

The power of administrative punishment 3 tax authorities is the basic power of tax collection, not the power of tax collection and management will not be carried out.

The 4 national fine after all be turned over to the state treasury, and the public security organs fines are retained, so the impact on the revenue of the central government. [2]

5 according to the "administrative punishment law" the twenty-eighth regulation, the tax authorities may impose administrative punishment in the penalty before.

Who oppose this opinion, the public security organs can be directly carried out the investigation of tax related cases; the public security organs in tax related criminal cases have the right of administrative punishment. The main reason is:

1 with the tax related cases in the investigation stage should also carry out administrative punishment, should not lump together, should distinguish different circumstances: if in the investigation stage, only for compulsory measures are not sufficient to eliminate the harmfulness of crime, the public security organ may make an administrative penalty, such as responsibility to suspend business for rectification, revoke the business license, pay taxes, for tax payment gold.

2 in the tax related illegal act has constituted a crime cases, the spirit of "criminal priority" principle, in accordance with the provisions of the law on administrative punishments, the tax authorities shall not punishment, can only be transferred to the public security organ.

3 public security authorities insist the idea, not from the point of view of the interests of this sector, but strictly according to law, accept the supervision of Procuratorate, court. [3]

The author thinks, the starting point for solving the above problems should not be how to allocate the departmental interests, and should be in the interests of tax related cases and strict enforcement of the principle to deal with two. As a starting point, the author agrees with the cases related to unified by the tax authorities to carry out administrative punishment.

First of all, the so-called "criminal priority" principle can not find a legal basis. These crimes in the criminal responsibility of the parties at the same time, also should bear administrative responsibility. That is to say, it shall assume the administrative responsibility and criminal responsibility cannot be absorbed. In the sequence of application of administrative penalty and criminal punishment, "not criminal priority" reflected in the relevant legislation. On the contrary, according to the provisions of relevant laws, the penalty may be applicable to administrative punishment. Such as "administrative punishment law" the twenty-eighth regulation, where an illegal act constitutes a crime, the people's court sentenced to criminal detention or fixed-term, administrative organs has been given to the parties to administrative detention shall be the same as the term of imprisonment. If an illegal act constitutes a crime, the people's court shall be sentenced to a fine, the administrative organ has given a fine, fine shall be reduced accordingly. As "administrative law enforcement organs eleventh regulations" Regulations on the transfer of suspected criminal cases, administrative law enforcement organs to transfer suspected criminal cases have been made before the warning to the public security organ, shall be ordered to suspend production or business, suspend or administrative punishment decision to revoke the license, suspend or revoke the license, do not stop.

Secondly, the tax authority of administrative punishment in advance, in favor of case investigation. Tax related crime is the first tax illegal acts in violation of tax law. The tax authorities to be familiar with tax, for a breach of the tax law, the tax authorities have more right to speak. So the cases related to the tax authorities for administrative punishment, helps to define the nature of the case to a certain extent. Even if the public security organ to obtain tax related crime clues, should also be timely informed of the tax authorities for tax authorities, opinion, or by two departments jointly investigated.

Third, in order to ensure the detection work can be carried out, the tax authorities should be suspected of tax related criminal cases transferred to public security organs as soon as possible. In the administrative punishment at the same time, the tax authorities should be informed to the public security organs or the clues, and the public security organs combined pre survey, and should not wait until after the administrative punishment cases transferred to the public security organ.

(two) the public security organs have the right to constitute the crime of tax related cases of fines and other administrative penalties

According to the Standing Committee of National People's Congress on punishment, "the sale of counterfeit and illegal crime of falsely making out special VAT invoice crime decision" the provisions of article eleventh, the illegal sale of special VAT invoice forgery, or sells forged special invoices for value-added tax, forged, or to make or sell forged, the unauthorized manufacture for defrauding export tax refunds, other invoice tax deduction of behavior, if the circumstances are minor, does not constitute a crime, by the public security organs at 15 days detention, a fine of 5000 yuan of the following. Accordingly, only for the tax illegal act, the public security organs have the right of administrative punishment. For other tax illegal act, only the administrative punishment by the tax authorities. Therefore, to constitute a crime of tax cases, the public security organ shall not have the right to carry out administrative punishment, can only be carried out administrative punishment or by the people's court sentenced penalty by tax authorities.

Two, administrative and criminal proceedings

In certain circumstances, for the cases related to administrative penalties and criminal litigation will simultaneously. If the tax authorities in the investigation of tax violation cases, found it may constitute a crime, then transfer the case to the public security organs, the public security organs and of its investigation, but the tax organ does not suspend the administrative punishment, but still continue to investigate. In this case, will appear on the same tax illegal act of administrative punishment, and the criminal procedure. However, if a party refuses to accept the decision on administrative punishment, administrative reconsideration to the taxation administrative reconsideration organ, there may be a decision of administrative reconsideration and criminal litigation referee conflicting situation. Especially in the administrative reconsideration decision to revoke the decision on administrative penalty, criminal litigation but ruling parties to bear the criminal responsibility of the circumstances, contradictions in the two program is more difficult to reconcile. How to deal with this, there are several different views:

The first kind of view, conflict in the administrative reconsideration and criminal litigation procedures, should adhere to the "criminal priority" principle, suspension of administrative reconsideration procedure, the first criminal procedure. [4]

The second view is that, in the administrative procedure and criminal procedure conflict, should take the administrative procedures. The reason is:

1 the legislation gives the tax authority great power, including attachment, seizure, auction, the implementation of the mandatory power. And the tax authorities are very familiar with tax on the financial accounting system, as a direct charge. These highly specialized business such as the judicial organs to check, it is possible for a professional to evidence loss.

2 if the criminal procedures, may be criminal judgment errors of fact, cause misjudged case.

3 criminal punishment is the most violent means to force. Only works in other means can not be the case, introducing punishment. Otherwise there will be a "criminal law and criminal law universal" to replace the law of other departments, which is on the national legal system failure.

4 from the tax case processing practice, if the criminal is preferred, can lead to the loss of tax revenue or interception, misappropriation and other abnormal situations. This is China's legal system is not perfect, lax enforcement of the law and the judiciary profession protection, local protection, but if the control from the source, before the tax authorities did not complete the administrative process, not a criminal procedure, won't appear these problems. [5]

The third view, the administrative reconsideration and the criminal procedure can simultaneously. The State Administration of Taxation in the "reply on whether the cases related to problems of taxation administrative reconsideration shall be suspended in a criminal trial period" (Guoshuihan [2002]130) points out, whether the administrative reconsideration shall be suspended in a criminal trial period, laws and regulations, no clear provisions, therefore, in accordance with the statutory conditions, in the criminal trial, should not be suspended in the administrative reconsideration.

The fourth view, the law does not clearly defined administrative or criminal procedure priority cases, should be a concrete analysis of concrete conditions, can not lump together, not to make it rigidly uniform. To adhere to the principles of conflict quickly investigate the case, the timely processing of cases and maintenance of national legal seriousness and unified to solve two program. [6]

I agree with the fourth view. As mentioned before, about the administrative reconsideration of priorities and criminal proceedings, there is no law to follow. The so-called "criminal priority" or "administrative priority" no legal basis. The two parallel, and inevitably cause conflict. To deal with the relationship between them, should be to ensure efficiency and justice administration and justice as a starting point.

Firstly, the administrative reconsideration if help ensure criminal litigation judgment is correct, can be carried out. At present, the judicial organs lack of expertise not only understand the law, and to understand the tax knowledge, give full play to the tax authorities deal with tax related cases of professional expertise, is conducive to the trial of economic, fast, prevent misjudged cases, but also to avoid the conflict of administrative reconsideration decision and criminal verdict.

Secondly, during the court is, the tax authorities for administrative reconsideration. Special circumstances, the tax authorities deemed tax evasion fact obvious errors, and the court consultations, to stop the criminal procedure, administrative reconsideration, the trial court to restore.

Third, the tax authorities and the judicial organs should coordinate with each other, mutual support, mutual cooperation, conflict and try to avoid administrative and criminal proceedings. In handling tax related cases, the relevant departments should strengthen cooperation, exchange views in a timely manner. At the same time, to the overall situation, to abandon the local, departmental protectionism. If the support has been seen, to the Department's interests as the starting point, will cause the care for this and lose that, contradictory, influence the correct implementation of the law.

Three, money and tax

In handling tax related cases, involving tax evasion, tax fraud, tax evasion, tax, whether money or tax, once in each sector caused some controversy. The tax authorities shall be considered taxes, tax authorities shall pursue the storage; the public security organs that is punished by the public security organs recovered the stolen money,,; court that the processing involved in the case of money should be the court shall prevail, the Court seized; others think that this money is a kind of tax with the tax money or property of the stolen money. [7]

The reason why there is different understanding of the tax, because look at problems from different angles. From the perspective of administrative law perspective, the tax tax related cases is dutiable goods, taxable services, the taxable income, the corresponding tax payable; from the criminal law point of view, it is a direct violation of the object of criminal suspects and the illegal income, is also a kind of money. Taxes and money tax related cases is unity, the two are the same. Money and tax tax related cases is the relationship between universality and particularity. Put the tax and money completely separate or be confused are wrong. [8]

For the cases related to tax, should be handled according to the following principles:

First, the tax only by the tax authorities turned over to the state treasury. According to the "tax administration law" and "rules for the implementation of the twenty-ninth Standing Committee of National People's Congress on punishing the crime of tax evasion, tax revolt of the Supplementary Provisions" seventh, "the National People's Congress on punishing fraudulent, counterfeit and illegal sale of special VAT invoices crime decided" twelfth and "criminal law" the provisions of article 212nd, the taxpayer or withholding agent people do not pay, pay, arrears, illegal deduction, withholding or cheating tax only by the tax authorities turned over to the state treasury, but not by as other cases in the money, with the case by the judicial organ, and finally by the turned over to the state treasury or returned to the victim. Made in accordance with the above provisions, in order to ensure the tax timely full specified amount, here reflects the particularity of the tax. Need to pay attention to is, "tax collection and management law" in article seventy-fifth, the tax organ and judicial organ's tax incomes from fines and confiscations should be in accordance with the budget, tax turned over to the state treasury, the public security organ fine on the tax illegal act, it must do so.

Secondly, as for the tax, public security organs and the tax authorities have the right to recover. Although, the tax payment base main body is the tax authorities, but because the property has the money, the public security organs in the handling of criminal cases involving tax, still have the obligation to assist the tax authorities have recovered by the taxpayer or withholding agent fails to pay, pay less, refusal to pay arrears, illegal, or cheating tax deductible. In specific practice, can be the difference between the conditions are treated: if the tax to clear, the amount of the tax has been identified, and can in illegal the taxpayer or withholding agent is recovered, the tax authorities may adopt tax preservation measures or tax enforcement measures directly levying tax warehousing; for the tax has been transferred, or unaccounted for, even have lost to the outside, the public security organs should adopt various means of investigation positive pay, the tax will be captured timely transferred to the tax authorities, pay the Treasury by the tax authorities for tax and other money; the mixed together, it is difficult to distinguish, by the public security organs will all the money to pay, the court in the implementation fines, confiscation of property before the sentence, and then by the tax authorities of the state treasury. The cases related to tax money in addition to the special provisions to base body, other each link must strictly implement the provisions of the state on the stolen money, processing and confiscated.

Four, the evidence and criminal evidence

The tax organs to transfer suspected criminal cases to public security organs before the clues, often already on the taxpayer's tax violations investigated and dealt with, and collected the evidence material in certain amount in this process. The tax authorities in handling the collection process illegal taxation cases in the material, the public security organs are in the investigation as litigation evidence used in practice, there are different views.

Hold a positive view that, if the public security organ authorized tax authorities to collect evidence, can be used as evidence in litigation. This can not only find out the facts, to obtain evidence, but also can solve the difficult problem of police forensics. If you insist on all the verification work independently by the public security organs, the tax authority has verified cases should be made by a public security organ duplication of verification, which not only bound to the public security organs of the hands and feet, but also will dampen the enthusiasm of the tax authorities. Legally speaking, the tax authority has approved the evidence is not to abandon the public security organs of the investigation power. Because according to "people's police law", citizens and organizations to assist the public security organs to perform official duties. The tax authorities to the public security organ to provide evidence of material its acquisition is a concrete manifestation of the assisted investigation.

Hold a negative view that, the evidence materials can not tax authorities have directly as litigation evidence. Because the law only the tax related crime investigation rights to the public security organs. Evidence collection is an act of investigation, the tax authorities shall not have the right to investigate and collect evidence in criminal proceedings. Therefore, the tax authorities to obtain evidence must be approved by the public security organs are converted to use as evidence. Otherwise, the direct use of the tax authorities to obtain evidence is against the law in procedure, such evidence of course can not be used as the basis for a final decision. [9]

I agree with the second view. Exercise the power of investigation on tax related criminal cases, public security organs of the statutory duties. Not on the grounds of "hard evidence", abandon or transfer this power. Therefore, tax related crime evidence in the case to the public security organs to collect by the investigators. Specifically, the testimony of witnesses, the suspect's confession must be made by investigators, made the tax authorities to investigate record cannot be used as evidence; a variety of documentary evidence provided by the tax authorities, shall be affixed with the official seal and signed by the tax authorities, taking of evidence investigation personnel. That is, the public security organs independent investigation of tax related criminal cases, collaboration, not don't tax authorities on the contrary, the tax authorities of the evidence obtained in the violations and taxes, can provide clues for the work of public security organs of investigation and evidence collection, some evidence law into criminal evidence.

　　

　　

　　

　　

Reference

[1] Li Xiaohong, Chen Guoping. Investigation on a tax related case [N]. China tax report, 1999-11-15

The [2] Summit on the establishment of tax related crime investigation mechanism of [A]. Ministry of Public Security Bureau of economic crime investigation. Economic crime and investigation research. (a) [C].139

[3] ibid

[4] Wu Zijun tax disputes should take the administrative procedures for the first [N]. Chinese tax report, 1999-02-25

[5] Royal Army. The administrative reconsideration and criminal procedures of [N]. China tax report, 1999-02-25

[6] Wu Zijun tax disputes should take the administrative procedures for the first [N]. Chinese tax report, 1999-02-25

[7] Qi Weidong. How to distinguish the cases related to tax and money [N]. Chinese tax report, 1999-12-30

[8] Zhang Zhongyu. The cases related to tax and proceeds of the difference between [N]. China tax report, 1999-08-12

[9] Guo Ruiji, Yang Chen. Republic of China first case: Jinhua County case investigation record [M]. Beijing: Chinese tax press, 1999.118

　　