system could be significantly constructive for human rights protection in tradition-bound China.
1 Concerning adoption of western legal systems, the Japan has some experience to offer for reference and there is a lot of literature available, such as Fukushima Masao, Tanaka Shigeaki, etc.
Firstly, this paper intends to begin with the limits of violation of people’s rights from the
“power to tax” (hereafter referred to as the ‘limit theory’).
1. Revision and Adaptation of Limit Theory
Tax State has its limits and these limits are symbiotic with the fate of capitalism and disappear with the downfall of capitalism.1 However, in modern countries and societies the theory of tax state not only faces whether the fiscal constitution is in line in structure with their intrinsic problems but is also confronted with how these limits should be adapted in response to the needs of a society in the modern age2 so that they can truthfully depict the image of modern taxpayers3.
In other words, for a modern state to revise as well as to adapt the theory of tax state and its limits so as to conform to taxation and humanity standards in a modern age is the very mission of the idea of tax state. To elaborate on this mission by constitutional justifiability of the taxation limits and targeting at the “revision” and “adaptation” of the
1 See Schumpeter(1918), Isensee(1977), Gee(1989,1990/1997)
2 See Musgrave(1982), Seidl(1991).
limit theory is the main axle of discussion. 1
Under the framework of this paper, the contents of revision and adaptation of the tax state limits chiefly include three parts:
Adoption of advanced tax law philosophies and systems;
Harmonization of Chinese and Western taxation ethic philosophies;
Significance of system transformation in tax law legislation
The following are outlined descriptions.
2. Reception of ideas and systems in legally-advanced countries
Under the mainstream influence from the West, the development of legal system in East Asia including that of Chinese societies appears to be ones that are comparably less advanced than western societies.2 Due to the sui generis character of reception, the
1 The so-called “revision” and “adaptation” are used to emphasize the distinction between temporary restriction or expansion measures (the latter) applied to the theory itself for deepening (the former) and pursuit of feasibility of the theory. However, it should be clarified here that such distinction has to be from the standpoint of recognition of independence of disciplines for it to have any practical benefit in development and discussion. In other words, even the concept of “theory” may have different definitions in various disciplines. In this paper it is only applied briefly in the fields of jurisprudence, public finance (or in fact just tax jurisprudence.) To put in simple words, each discipline has its own models.
2 See [Huang], [Fuke].
receiving part has to deal with the localization of the received foreign systems1.
Furthermore, in the realm of tax jurisprudence, the reception of tax state theory, even in Western nations where it has originated and is deeply rooted2, still has to be reexamined to determine if it is in line with the times. More precisely, notice that modern taxation is symbiotic with capitalism3, countries with “advanced” legal systems must determine the relation between capitalism and taxation in their respective political, economic, social and cultural contexts (or to what extent capitalism has its influence on their using taxation as the state’s ruling instrument) so that they can make adaptations of the received limitations of tax state.4
The issue of localization is a question of “revision of theory” is different from the notion of “adaptation of theory” which deals with applicability of theory per se.
However, a comparison of Crisis and Discourse,—whether and how the tax state theory capable of being a reference in the Chinese world—may appear, at first glance, to be a question of “revision of theory”. But in effect it may as well be taken as “adaptation of theory”.
1 See [Yeh]
2 See J. Backhaus (2005), N. Sasaki (2005).
3 See Schumpeter (1945).
3. Harmonizing Tax Moralities between East and West – from Internalization of Values to Internalization of Legal System
In actuality, the idea of tax state has been recognized in many constitutional contexts.1. Today, considerations should not only be on the justifiability of the tax state theory. they should also be made to determine how to “internalize” a set of values that exists prevalently in nations with an advanced legal system in order to make it a part of a nation’s own legal system to perfect the legal system. However, from the angle of jurisprudence, conflicts can be found everywhere between the values of the law of the adopting nation and those of the adopted nations in the process of this “internalization.”
This is an issue that makes the need of an original (or intrinsic) fiscal constitution stand out even more.
4. Tax Regulations in Transformation– Reassessing Limits of Taxation in Constitution
Limits of taxation signify the relations between the state and individuals. In
1 Precise stipulations can be seen in Magna Carta and the Bill of Rights of the UK, the Declaration of the Rights of Man and of the Citizen of France, and the Bill of Rights of the US.
constitutional jurisprudence, limits of taxation are the product of a specific constitutional sense of value. Determining observation of taxpayers from the constitutional fundamental values is after all a matter of defining the relationship between taxpayers and the tax state (or the taxation system,) as well as a matter of the interrelation between the state and society in tax jurisprudence. This relationship is not merely an external presentation of drawing the line between the power to tax and private property. It is also an approach to investigate the two major elements of the “judgment of social values that have an effect on the subjective preferences of taxpayers’ behavior”
(people in the society) and the “fiscal framework that has influence on the choice of value of taxpayers’ behavior.”
The two interpretations of the limit theory mentioned above also carry different meanings in theory. The first meaning (division between the power to tax and private property) is a question of level in “revision of theory,” whereas the second meaning (definition of the relationship between taxpayers and the tax state) has its significance in
“adaptation of theory.” Nevertheless, investigation of regulations in socialistic market economy systems has both the abovementioned meanings in tax jurisprudence.
II. Constitutional Limits of Taxation – Elimination of Contradiction between the
Power to Tax and the Property Right
Only in state capitalism can progress be obtained; it fundamentally alters the public
revenue structure and affects the economic system of the nation.
R. Goldscheid, A Sociological Approach to Problems of Public Finance∗
The best is to allow the people to find their own directions, then to guide them with
interests, then to educate them with morality, and then to restrict them with authority.
The worst is to compete with the people.
Shi Ji Huozhi Liezhuan∗∗