| Summary: | 碩士 === 國立中正大學 === 法律所 === 94 === Thesis Summary
In Item No. 2 of Article 148 in the Civil Law of Taiwan, it is stated that “The exercising of rights and performance of obligations shall depend on the measures of honesty and credibility.” The legislative reason of this are: (1) Good faith principle which shall be applied to any exercising of rights and performing of obligation; (2) Good faith principle of the Current Law barely upon the exercising of creditor’s rights and performing of obligation, which was originally stipulated in Article 219 of the Provisions of Debt and was amended in 1982 with an increase of provision stated under Item No. 2 of Article 148 in the Civil Law due to the inability to cover other rights exercise and obligation performance. As comprehensively surveyed, honesty and credibility is the utmost guidance principle of the Civil Law which is referred to as “The Paramount Clause”, and it can appropriately be applied to any provisions stated in the Civil Law. And in 1999, the good faith principle had also been stated in Article 8 of the Administrative Law which was established and proclaimed by our country: “The administration shall acts with honesty and credibility, .....” Yet, before the proclamation of the Administrative Law, the Administrative Court had already been applying the good faith principle as the judgment basis of the arguments in public law between the people and the administrative organizations. An evidence of this can be traced in the 1963 judgment of Administrative Court with case no. Pan-Zih No. 345. This paper shall probe and discuss about the applicability of the good faith principle to the Tax Law, and the conditions of current tax law under the application of the good faith principle.
This paper is divided into seven chapters summarized as follows:
Chapter 1: Explanation of the motives, purpose, methodologies and limitations of the research.
Chapter 2: Summary of the Good faith principle. Understanding the meaning of the Good faith principle and the relative stipulations of it in the Civil Law of Taiwan; Probe into the concept origins and developments of the principle in the legal systems of Mainland China, England and United States, as to understand the natures and specific functions of the principle, as well as the important subordinate concepts of it and the concerns need to notice when invoking such subordinate concepts with the principle.
Chapter 3: Due to the fact that Tax Law has the natures of both Public Law and Administrative Law, the applicability of the good faith principle to Public Law and Administrative Law is therefore studied in the first place. The applicability of the principle to the Tax Law shall then be probed after the above mentioned and the determination of the legal concerns of Tax Law.
Chapter 4: The principle of taxation by law and the principle of fair taxation are the most important principles of Tax Law. The former is about the way of exercising the right of taxation; the latter is about sharing of tax burden. In other words, the former is the formal principle and the latter is the substantial principle. Regarding the discuss of application of good faith principle to Tax Law, the chapter is to seek out crucial meanings with regard to three basic principles, including the principle of taxation by law, the principle of fair taxation, and the principle of due process of tax levy, and then pry about conditions of the good faith principle applying to the said three basic principles by means of interpretations of grand justices.
Chapter 5: The chapter views the establishment process of our domestic tax system to see if it violates the spirit of the good faith principle. In addition to the thought of system, as for the practice of tax levy, it is to know the current application condition of the good faith principle in practice through the relationship between the taxation organizations and tax payers and disputes of taxation regarding inheritance & gift tax, business tax, and enterprise income tax.
Chapter 6: The chapter focuses on discussing the practice of the good faith principle on our Tax Law and brings up specific direction and advice on the application of the good faith principle to Tax Law. Besides, it also reviews and analyzes the defects of the current tax law against the good faith principle to press taxation organizations to carry out the good faith principle adequately, protect rights and interests of people, and urge taxation organizations to explain Tax Law based on the said principle, sticking to the due process of law about engaging in tax investigation so as to avoid the abuse of their rights of taxation by means of case study, judgment of Administrative Court and interpretation of grand justices.
Chapter7: The chapter is to raise the conclusion and advice concerning the thesis.
Title of the Thesis: Research on the Application of the Good faith principle to Tax Law
Key words: Good faith principle; prohibition of rights abuse; state variation; estoppel; accompanying obligation; prohibition of deception and illegal measures; fair taxation; Ability To Pay Principle; Substantive Levy Principle; prohibition of tax stipulations; invalidity of rights; duty to disclosure
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