| 摘要: | 憲法第19條規定：「人民有依法律納稅之義務。」相對地，國家亦僅得依法律向人民課徵稅捐，是人民與國家間存在租稅法上債權債務關係。而人民如以詐術或其他不正當方法逃漏稅捐，則此等行為究竟應負何等法律責任？立法者之初步選擇認為逃漏稅捐行為係一刑事不法行為而有受到刑事處罰之必要，遂於1976年10月22日制定以稅捐稽徵法第41條逃漏稅捐罪為核心之刑事責任及其相關規定，惟國家刑罰權之發動，動輒背負鉅額罰金，甚而侵害人身自由，必須嚴謹以待，逃漏稅捐罪因而萌生諸多爭議問題值得探討。
觀稅捐稽徵法第41條逃漏稅捐罪之立法理由：「按逃漏稅捐行為，就其犯罪情狀言，多與刑法第三三九條第二項之詐欺罪及第二一○條、第二一四條偽造文書罪相當。」然是否果真如此？首先，刑法之主要目的既在於保護法益，則逃漏稅捐罪之保護法益是否如同立法理由所言，而有須要特別制定刑法以外之罪？其次，保護法益既具有構成要件解釋指導及批判現行法之兩種機能，則逃漏稅捐罪之構成要件要素納稅義務人以詐術或其他不正當方法逃漏稅捐應作何解釋以達成保護本罪之法益，以及是否能充分描述以周延本罪之保護法益？再者，犯罪成立後之刑事處罰既屬於最為嚴厲之制裁方式，則逃漏稅捐罪之法定刑五年以下有期徒刑，併科新臺幣一千萬元以下罰金是否符合罪刑相當原則，以達成刑罰對於過去報應及未來預防之目的？最後，人民既涵蓋自然人與法人二者，而自然人逃漏稅捐者，本屬刑法之範疇，則法人犯逃漏稅捐罪應否及如何建構及承擔刑事責任？
綜上所述，本論文逃漏稅捐罪爭議問題之研究將著重於稅捐稽徵法第41條至第43條及第47條，逃漏稅捐罪之保護法益、逃漏稅捐罪之構成要件要素、逃漏稅捐罪之刑事處罰及逃漏稅捐罪之法人刑事責任四者核心議題，並透過蒐集加以彙整學說理論及司法實務，從而比較日本法及德國法，提出本文評析。
In accordance with Article 19 of the Constitution of the Republic of China (Taiwan): “The people shall have the duty of paying taxes in accordance with law.” On the other hand, the government can only levy taxes from the people in accordance with law without a doubt. Namely, the people and the government develop a relationship of debtor and creditor upon tax laws. However, what are the legal responsibilities shall they have, if a person evades tax payment by fraud or other unrighteous means? That tax evasion should trigger criminal punishment for criminal offense, is the primary consideration of the legislator. Consequently, on October 22, 1976, the crime of tax evasion was established in Article 41 of the Tax Collection Act and its related regulations as criminal liability. Nevertheless, since the severe nature of punishments leads to not only significant monetary fines but also even imprisonment, it must be treated precisely and rigorously. The crime of tax evasion, therefore, has given rise to numerous controversial issues worth exploring.
Regarding the legislative rationale for Article 41 of the Tax Collection Act concerning the crime of tax evasion: “The conduct of tax evasion, in terms of its criminal nature, is almost comparable to the crime of fraud under Article 339, Paragraph 2, as well as the crimes of document forgery under Articles 210 and 214 of the Criminal Code of the Republic of China.” However, is it truly the case? First and foremost, considering that the primary purpose of criminal laws is to protect legal interests, does the protection of legal interests of the crime of tax evasion share the same legal interests as sited in the legislative rationale that it is necessary to establish a crime outside the Criminal Code of the Republic of China? Secondly, since the protection of legal interests serves two major functions as guidelines for interpreting the constituent elements of a crime and critiquing current laws, how should the constituent elements of the crime of tax evasion, such as a taxpayer who evades tax payment by fraud or other unrighteous means, be interpreted to fulfill the protection of legal interests of this crime, and is these interpretations sufficiently described to encompass the protection of legal interests of this crime? Thirdly, since criminal liabilities are considered as the most severe nature of punishments, does the statutory penalty of the crime of tax evasion, which shall be sentenced to imprisonment for no more than 5 years, and be imposed with as fine of no more than 10 million New Taiwan Dollars, align with the principle of the punishment fitting the crime, in order to accomplish both retributive and preventive purposes from past and future? Finally, since the definition of the people includes not only a natural person but also an artificial person (a corporation), a natural person who evades tax payment surely falls within the scope of the criminal laws, on the other hand, shall an artificial person who evades tax payment be sentenced to criminal liabilities, and how to device its basic structure?
Overall, this thesis, a study on controversial issues of the crime of tax evasion, will compile and organize academic theories and judicial opinions, compare Japanese and German laws, that focuses on the crime of tax evasion’s protection of legal interests, constituent elements, punishments and corporate criminal liabilities these four core issues in Article 41 to 43 and 47 of Tax Collection Act, and then perform subjective analyses. |
