The Relationship of Tax Administrative Orders and the Principle of “Vorbehalt des Gesetzes”--- analysis of Statutory Interpretations by the Grand Judges in Taiwan

• Main Authors: Mong-chiao LIN, 林孟巧
• Other Authors: Chia-Yin HUNG
• Format: Others
• Language: zh-TW
• Published: 2005
• Online Access: http://ndltd.ncl.edu.tw/handle/76285038426286381226

碩士 === 東吳大學 === 法律學系 === 93 === In the Republic of China (in Taiwan), all residents have a constitutional duty to file tax returns voluntarily and the tax bureau will audit all. However, sometimes it seems ambiguous in the real world because there are only principles showed in the tax law. As such, disputes often come between the taxpayers and the tax bureau. The tax bureau issues many administrative orders explaining what certain tax law means and gives taxpayers a standard to follow. However, these administrative orders also have some legal problems. If we take a glance at the legal system in the Republic of China (in Taiwan), it is a “statute law country” but there was no formed “Administration Law” in the past. Our public legal system has long been copied from the German concept of “Vorbehalt des Gesetzes” as one of the most important constitutional principles but has since been modified by ourselves through these years. Chapter Two introduces this concept and how this concept progressed in Taiwan, and its application in our tax field. Administrative orders were classified as “regulations by law” and “regulations by power” through Article 7 of Central Law & Regulations Standard. Until the year 2000, when the Legislative Yuan passed the “Administrative Procedural Law,” and announcing that the law will become effective Jan. 1, 2001. It was a good start to a formal legal process. However, the new Procedural Law classified administrative orders in different definitions. These different definitions are very important because they may lead to different administrative remedies in the tax field. Chapter Three discusses these different classifications and analyzes Article 159 of the new “Administrative Procedural Law” to understand how the difference affects in administrative remedies. In Chapter Four, a case analysis of tax-related administrative orders was made. These orders are classified into four types then examined if the 400 orders issued since the year 2000 conform to the “Administrative Procedural Law.” I also paid attention to how legal interpretation and administration orders showed in real cases and their important role on administrative remedies. Chapter Five is a case analysis of the Statutory Interpretations by the Grand Judges in the Republic of China (in Taiwan). From reviewing of 44 chosen interpretations by the Grand Judges’ on tax regulations, I discovered that the ratio of taxpayers winning is only about 20%. In these 44 Interpretations, it was also discovered that, though not written into tax laws, “provable receipts problem”, “the formula to estimate tax” and “the way to pay tax”, are regulations tax regulators are empowered to enforce as given by the Grand Judges. In Chapter Six, a solution to overcome the interference between Tax Law and Administration Law was developed. In conclusion, this paper also stakes a boundary line of our “Vorbehalt des Gesetzes” in the tax law field. In this chapter, a comparative study was also made to discuss the difference between “Justice in Public Welfare” and “Justice in Law.” The comparative study in the end was a trial to trace back the original concept of “equal” and “fair.”