稅收徵管中契約工具的運用及其法治應對

On the Application of and Legal Responses to Contractual Tools in Tax Collection and Management

在傳統稅法的理論預設中，稅收徵管運作機制立足於稅收的強制性、無償性特徵以及稅法作為強行法的基礎之上，強調稅收權力的依法行使，由此似乎排除了契約在稅收徵管過程中存在的可能。然而，在實踐中，作為私法形式的契約不僅有可能融入稅收徵管權力關系構造中，形成稅收徵管中的多種契約形態，而且可以成為實現稅收徵管目的的工具，在保障稅款徵收以及引導納稅人自願遵從、調節徵納雙方利益關系方面發揮積極作用。但是，契約工具的運用對立足於強制性稅收徵管之上的稅法體系產生沖擊，需要通過擴展稅收徵管控權方式、完善納稅人權利配置、優化稅收徵管程序以及建構適應契約工具特點的爭端解決與問責機制加以全面應對。

"In the theoretical structure of traditional tax law, the operation mechanism of tax collection and management is based on the mandatory and unpaid characteristics of tax and the tax law as a mandatory law, emphasizing the exercise of tax power according to law, which seems to rule out the possibility of contract in the process of tax collection and management. However, in practice, as a form of private law, the contract may not only integrate into the powerful relationship structure and form a variety of contract forms, but also become a tool to achieve the purpose of tax collection and management and play a positive role in ensuring tax collection, guiding taxpayers to comply voluntarily and regulating the interest relationship between tax collectors and payers. However, the use of contractual tools has an impact on the tax law system. It needs to be comprehensively dealt with by expanding the way of tax collection and management control, improving the allocation of taxpayers’rights, optimizing tax collection and management procedures, and constructing a dispute settlement and accountability mechanism suitable for the characteristics of contractual tools."