租稅國家與財政憲法－對照《鹽鐵論》與《租稅國危機》

Tax State and Fiscal Constitution－Comparing《Discourse on Salt and Iron》and《The Crisis of the Tax State》

藍元駿(Yuan-Chun Lan)

指導教授 ： 葛克昌

國立臺灣大學/法律學院/法律學研究所/博士(2009年)

https://doi.org/10.6342/NTU.2009.02892

摘要

無資料

關鍵字

課稅正當性 ； 租稅倫理 ； 稅法規範 ； 租稅國危機 ； 鹽鐵論 ； 課稅界限 ； 財政社會學 ； 義利之辨 ； 原則規則理論 ； 語言相對性 ； 繼受 ； 固有性

並列摘要

A quick answer to the question of legitimacy of taxation on the public character of tax or its democratic endorsement may often ease the pain from taxpayers. However, if we proceed, to question the legitimacy of tax obligation or tax power in the context of traditional Chinese ideologies, we are bound to face the following question: whether such characters nourished in the west could its resemblance be found in China? If yes, what are the similarities and disparities? If no, whether these characters are worth to be transplanted?

Aiming at the fact that numerous westernized institutions with such foreign characters being implanted as the present situation in the Chinese society, how to mitigate possible contradictions between such western ideologies and intrinsic values rooted deeply in our own tradition is all the more pressing. Discouragingly, such issue in the field of tax jurisprudence seldom raises attention.

Taking the concept of “limitations of taxation” into account, two corresponding issues could be raised. First, whether such western-bred concept could find its resemblance in traditional China? Secondly, if yes, what are the disparities in between? To simply put, the former deals with the question of “Commonality”, the latter, the question of “Intrinsity”. Such inquiry, in our opinion, has to some extent touched upon the issue of social values underlying norms.

In reply to the greetings from the westernized tax normality so as to tax morality, how do Chinese commence communication with its own ideas of taxation thus becomes the core issue. To be explicit, this paper attempts to clarify the foundations of tax normality in the traditional Chinese thoughts through reflections on the limitation theory of taxation harbored in the west.

Through socio-psychological factors indicated by the limitations of taxation in the west, we tend to sort out common features out of the background in the text of 《Discourse on Salt and Iron》. In fact, the two strongly-opposed parties appeared in the “Salt and Iron Meeting” reveals two versions of tax morality, governing the development of two contrasting ideologies of taxation, thus resulting in the confrontations of two interests.

In terms of jurisprudence, the above-raised question—that is, the reply of traditional Chinese values (hereinafter “Intrinsity”)—shall be seen as a question of “possibility of reception” (hereinafter “Receptionability”) in the Constitutional level. To further, the question of Receptionability intends to argue whether the question of people’s tolerance to tax burden falls in the category of jurisprudence or not, namely, the question of the relativity of discipline. In reply to this question, we try to find possible answers through the process of how man reaches his understanding of knowledge.

We hold the belief that when intrinsic values encounter a foreign culture, be it confrontation or integration, only on a premise of communicability and mutual understandability could interactions between the both sides be of significance and of plausibility.

Modern State being a tax state, its revenue shall depend on tax revenue as a principle. At the same time, under a state ruled of law, taxation must be in the form of law, thus contributes to the protection of the people. Through constitution, imposition of proper “limitations” on state’s taxation behaviors has been the very mechanism for the protection of taxpayer’s rights. The functioning of the mechanism is centered on the “rights” of taxpayers. To further, once the rights, protected by the constitution, are being infringed by taxation, the constitution could limits such taxation (namely, to nullify such infringement to rights), and reach the goal of protecting taxpayer’s rights.

However, two things could be questioned here. First, whether such limitations—in other words, the approach to simply nullify the source of infringement—could fulfill the purpose of the protection of the rights of the taxpayers is in doubt. Second, even more seriously is the situation that whether the protection of “rights” could actually be the protection of “taxpayers” is dubious. By paying attention of the on-going tax reforms over the years, discussions over tax equity continues to rage. Two things might worth mentioning according to such phenomenon. First, the issue of tax equity to the mass is all the more pressing. Secondly, the problem remains unsolved. Hence, maybe it should worth a try to first look at the constitutionality of the mechanism before we bury ourselves again into the floods of efficiency-oriented schemes in tax reformations. The main focus of this paper, therefore, is how to make revisions or adaptations to limitation in the constitution.

並列關鍵字

limitation of taxation ； legitimacy of taxation ； tax morality ； tax normality ； intrinsic values (Intrinsity) ； Reservation of law (Vorbehalt des Gesetzes) ； Rule of law in taxation (Gesetzmae&szlig ； igkeit der Besteuerung) ； obligation to pay tax ； rule and principle ； language relativity

參考文獻

Pan, Y.F.(潘英芳), Construction and Comments on the Protection of Taxpayer’s Rights: From judicial protection and legislative protection, 2009. [Pan YF (2009)]

Campbell, J.L, The State and Fiscal Sociology, Annual Review of Sociology, vol.19 (1993), pp.163-185. [Campbell](1993)

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