論稅捐處分撤銷訴訟之裁判類型──以德國財務法院法為中心

A Study on the Types of Judgments in Opposition Against Tax Administrative Disposition: Based on the Law of the German Financial Court

在德國法上，納稅義務人針對違法之稅捐處分所提起之訴訟類型，最主要為依據德國財務法院法第100條規定之撤銷訴訟。該條規定針對納稅義務人對於稅捐處分之不服而提起撤銷訴訟有理由時，法院可為之裁判類型，大致可分為，行政處分之撤銷、續行確認訴訟、重新為金額之核定、未就本案事實裁判之撤銷以及撤銷與給付判決之連結。這五種裁判類型分別有其不同之適用要件。其中，涉及稅捐金額之核定，法院最主要之裁判類型為自行或是撤銷發回予稅捐機關為金額之確定，或是，作成未就本案事實裁判之撤銷。法院對於該等裁判類型並非有選擇之裁量權限，而是須依各該規定之適用要件為之。該條文對於我國於民國一○五年公布之納稅者權利保護法第21條第3項納稅義務人針對課稅處分提起撤銷訴訟有理由時，法院對於稅捐金額之核定應自為判決之規定有重要之討論價值。藉由德國法之比較，該條第3項前段規定類似於德國財務法院法第100條第2項第1句之法院重新為金額之核定；而後段規定，則類似於同條文第3項之未就本案事實裁判之撤銷發回。從而，本文除了介紹德國就上開撤銷訴訟規定所發展之法釋義學外，最後，藉由德國法之借鏡，釐清納稅者權利保護法第21條第3項規定在訴訟法上之體系脈絡與適用要件，並提出修法之建議。

In German law, the type of lawsuit brought by the tax obligor against the illegal Tax Administrative Disposition is mainly the Opposition according to Article 100 of the German Financial Court Act. This article stipulates that when the tax obligor’s won the lawsuit for the Opposition against the illegal Tax Administrative Disposition, the court may decide the types of judgments, which can be roughly divided into the following categories: cassation of administrative disposition, continuation of confirmation proceedings, re-assessment of the amount, without making a judgment on the matter and the connection between the cassation and the payment of the judgment. These five types of referees have their own applicable requirements. Among them, regarding the determination of the tax amount, the most important type of court judgment is to decide the amount by itself or to revoke it and send it back to the tax authority, or to make a cassation of the judgment on the facts of the case. The court does not have the discretion to choose these types of adjudication, but must comply with the applicable requirements of each of the provisions. This Article is important discussion value for the Article 21, Paragraph 3, of the Taxpayer’s Rights Protection Law in 2016 by our country. It’s about the tax obligor to win the lawsuit for the Opposition against the illegal Tax Administrative Disposition, the court shall determine the tax amount by itself as a judgment. By comparison with German law, the first paragraph of paragraph 3 of this article is similar to the first sentence of Article 100, paragraph 2, of the German Financial Court Act, where the court re-determines the amount; while the latter paragraph is similar to that of paragraph 3 of the same article, where without making a judgment on the matter. In addition to introducing the dogmatics in Germany on the provision of Opposition, this paper finally, through German law, clarifies the system context and application requirements of this provision in procedural law, and puts forward suggestions for law revision.