論逃漏稅捐罪之處罰基礎

本文嘗試為稅捐稽徵法第41條之逃漏稅捐罪建立由上至下的正當性基礎。基於自私即理性的預設，本文主張，由於國家是個體自願性地限縮自身對外支配以俾進入穩固合作，從而使每一名個體所獲效用皆得到提升之必要條件，故其存在具有正當性。國家提供之服務與建立的制度亦應符合柏拉圖改善，即在不使任何個體的效用受到減損的前提下提升任一名個體的效用，始具有普遍性而具有正當性。而政府須徵收稅捐以支應提供服務的財政支出，此為稅捐之正當性來源。稽徵階段之核定程序的運作，因稅法上協力義務的設計而易受納稅義務人的妨害，故本罪設定的保護法益為核定程序之完善運作。最後，本文認為單純不為申報因不具有保證人地位，故不成立不純正不作為犯，但本罪有增訂純正不作為犯之空間。

關鍵字

協議道德；稅捐稽徵法；逃漏稅捐罪；賽局理論；柏拉圖改善；不作為逃漏稅捐

並列摘要

This thesis undertakes to construct a top-down justification foundation for tax fraud penalty as stipulated in Article 41 of the Tax Collection Act in Taiwan (this “Crime”). This thesis proposes that in the assumption of that one is rational to be driven by his/her self-interests, as the existence of a state is an essential factor for everyone to be able to jointly and voluntarily restrain their own entitlement rights to the world and cooperate with each other while the utilities of all will increase, the existence of the state shall be justified. Not only the state itself, the services and systems provided by the state can be considered as universal and justified if they meet the Pareto improvement condition, under the implementation of which one or more of the members of the state’s utility will be increased while no one’s utility will be decreased at the same time. The Taxation gains its justification foundation from the government’s necessity to levy taxes to pay for its fiscal expenditures due to rendering the justified services. Since the assessment process in tax collection stage is vulnerable from tax payer’s interference as it is schemed to involve tax payer’s obligation to cooperate, the smoothly operation of the assessment process shall be deemed as the legal interest of this Crime. Last, this thesis argues that omission to declare tax related information does not constitute a derivative omission offence due to the lack of guarantor’s position of the perpetrator; however, it is acceptable to amend the articles to include punishments of direct omission offence for tax fraud.