Viewpoint... The reasonable limit and practical exploration of the elements of the crime of falsely issuing special VAT invoices.
Published:
2022-08-02
引言 我国《刑法》第二百零五条规定了虚开增值税专用发票罪，从法律用语上来看，凡是“虚开增值税专用发票”的，即可构成本罪，将此种犯罪构成要件的类型界定为了行为犯。剖析本罪的立法目的，在于惩治虚开增值税专用发票骗取国家税款的行为，以保护两个重要的法益：国家对于增值税专用发票的管理秩序及国家的税收权。早期的司法实践中，犯罪分子虚开增值税专用发票通常是为了骗取国家税款，本罪法律条文用语的表达与罪犯的实际行为是不谋而合的。随着经济社会的发展，实践中出现了大量不以骗取国家税款为目的的虚开增值税专用发票的行为，便造成了法律规范所保护的法益与实际行为所侵犯的法益产生偏差，从而难以虚开增值税专用发票罪定罪处罚的情形，也引起了理论界针对此罪究竟为行为犯还是目的犯、危险犯的争议。 一 虚开增值税专用发票罪相关法律文件 1996年最高法发布《最高人民法院关于适用<全国人民代表大会常务委员会关于惩治虚开、伪造和非法出售增值税专用发票犯罪的决定>的若干问题的解释》，明确规定“虚开增值税专用发票”的行为包括：（1）没有货物购销或者没有提供或接受应税劳务而为他人、为自己、让他人为自己、介绍他人开具增值税专用发票；（2）有货物购销或者提供或接受了应税劳务但为他人、为自己、让他人为自己、介绍他人开具数量或者金额不实的增值税专用发票；（3）进行了实际经营活动，但让他人为自己代开增值税专用发票。该解释同时规定，“虚开税款数额1万元以上的或者虚开增值税专用发票致使国家税款被骗取5千元以上的，应当依法定罪处罚。” 2002年最高法发布《最高人民法院关于审理骗取出口退税刑事案件具体应用法律若干问题的解释》，其中第三条、第四条、第五条均提及“骗取国家税款”、“造成国家税款损失”的关键要素，即为法律所保护的国家税收权之法益。 2015年《最高人民法院研究室〈关于如何认定以“挂靠”有关公司名义实施经营活动并让有关公司为自己虚开增值税专用发票行为的性质〉征求意见的复函》指出，挂靠方以挂靠形式向受票方实际销售货物，被挂靠方向受票方开具增值税专用发票，不属于虚开增值税专用发票。即便行为人之间不存在挂靠关系，但行为人存在实际经营活动，无骗取税款的主观故意，未造成国家税款损失的后果，也不宜认定为虚开增值税专用发票。 2020年《关于印发<最高人民检察院关于充分发挥检察职能服务保障“六稳”“六保”的意见>The "Notice" mentioned that it is necessary to handle corporate tax-related cases carefully in accordance with the law, and grasp the boundary between general violations and crimes for the purpose of defrauding state taxes. If an enterprise has actual business activities for the purpose of falsely increasing performance, financing loans, etc., and does not cause state tax losses, it does not belong to the crime of falsely issuing special VAT invoices. 2 Practical Cases of the Crime of Falsely Issuing Special VAT Invoices and the Gist of the Judgment (I) Zhang sent back for retrial of innocent case [Issued by the Supreme People's Court: Typical Cases of People's Courts Giving Full Play to Their Trial Functions to Protect Property Rights and the Legitimate Rights and Interests of Entrepreneurs (Second Batch)]] Summary of the case: In 2004, the defendant Zhang Mouqiang partnered with others to set up an individual enterprise, a dragon bone factory, and Zhang Mouqiang was responsible for production and business activities. Because a dragon bone factory is a small-scale taxpayer and cannot issue a special VAT invoice for the purchasing unit, Zhang Mouqiang signed a sales contract in the name of Xinyuan Company run by others. From 2006 to 2007, Zhang Mouqiang successively signed light steel keel sales contracts with six companies. The purchasing units all remitted the payment to Xinyuan Company's account. Xinyuan Company also issued a total of 53 special VAT invoices for the above six companies, with a total price and tax of 4457701.36 yuan and a tax of 647700.18 yuan. Based on the above facts, the people's Procuratorate of a certain state and city accused the defendant Zhang of falsely issuing special VAT invoices. The main purpose of the judgment: The Supreme People's Court found that the defendant Zhang Mouqiang signed a sales contract in the name of another unit, and the unit collected payment for goods and issued special VAT invoices. It did not have the purpose of defrauding state taxes and did not cause state taxes. Loss, his behavior does not constitute the crime of falsely issuing special value-added tax invoices. The people's court of a state and city found that Zhang Mouqiang constituted the crime of falsely issuing special value-added tax invoices was an applicable legal error. (II) Wang Chao's retrial commuted to no-crime case [(2021) Lu Xing No. 4]] Summary of the case: The defendant in the original trial, Wang Chao, was an employee of Company A and also had his own truck transportation business. It undertakes the transportation business from Company A and transports well cement to Company B and C. Because the settlement freight needs to issue transportation invoices with tax deduction function for Company B and Company C, at first the defendant Wang Chao issued invoices from the tax authorities, and the invoicing tax rate was 5.8. From June 2010 to December 2010, Ding Company, which was set up by Guo Mou, issued transportation invoices of 2396828 yuan one after another. Ding Company paid taxes to Yiyuan Local Taxation Department according to the face value of the transportation invoices issued, and Wang Chao paid the invoice fee of 4.6 to the company. After Wang Chao handed over these transportation invoices to Company B and Company C, Company B and Company C used the above invoices to deduct tax 167777.96 yuan. The main point of the judgment: the defendant Wang Chao provided the real transportation business, there was no act of falsely issuing special VAT invoices without real goods transactions, and the special VAT invoices issued were issued according to the real freight amount. The purpose of invoicing is to settle freight with the receiving unit, not to offset tax. Defendant Wang Chao subjectively did not have the criminal intention to defraud the tax deduction. Objectively, he neither used it to deduct the tax by himself nor allowed others to illegally deduct the state tax by using it. He did not cause the loss of the state tax and did not constitute the crime of falsely issuing invoices for tax deduction. (III) Choi Chi-cheung's retrial commuted to no-crime case [(2017) Lu 02 Xing Zai No.2]] Summary of the case: Cui Zhixiang, Cui Baoyou and Company A signed a contract for the transportation of goods. Cui Zhixiang originally issued a transportation invoice at the local tax bureau and provided it to Company A. The invoicing tax rate was 5.8. Later, from June 2010 to March 2011, Cui Zhixiang went to Company B run by Guo Ying to issue 1608270 yuan's transportation invoices one after another. Cui Zhixiang paid the company a 4.6 tax rate for the invoice. Cui Zhixiang handed over these transportation invoices to Company A, which deducted 112578.9 yuan's tax with the above invoices. The main purpose of the judgment: the act of finding others to issue invoices on behalf of others without the purpose of tax fraud cannot be compared with the social harmfulness of false criminal acts for the purpose of tax fraud. therefore, under the circumstances that it cannot be proved that the defendant has the intention to defraud tax deduction or help others to defraud tax deduction, the act of finding other companies to issue invoices on behalf of others does not conform to the original intention of the legislation, nor conforms to the principle of the principle of subjectivity, nor conforms to the principle of objectivity and the principle of crime. 3 The reasonable limitation of the elements of this crime. From the above-mentioned relevant legal documents and precedents, it can be seen that the constituent elements of the crime of falsely issuing special VAT invoices not only include the act of falsely issuing, but also require the actor's act of falsely issuing with the subjective intention of defrauding state taxes. The intention, together with the consequences of the loss of state taxes, has become the judgment standard for the crime of falsely issuing special VAT invoices. If we only explain the provisions of the criminal law by means of literal interpretation, it will make the scope of the crime of falsely issuing special VAT invoices appear unreasonable expansion, resulting in the pre-administrative illegal act of falsely issuing special VAT invoices being included in the scope of the criminal law, which violates the principle of legally prescribed punishment for a crime and the modesty of the criminal law. Only by adopting the method of purposive interpretation and restricting the meaning of the provisions of the criminal law to the purpose can we avoid the divergence between the criminal acts punished by the criminal law and the legal interests protected, prevent objective imputation, and realize the unity of the subjective and objective in essence. 4 Conclusion After the crime of falsely issuing special VAT invoices is included in the criminal law, it plays an important role in protecting the security and stability of national taxation. After a long period of economic development in China, the external environment of the market has changed, and the awareness of the rule of law of market participants has also been improved to varying degrees. As the Central Committee of the Communist Party of China and the State Council's "Opinions on Improving the Property Rights Protection System and Protecting Property Rights in accordance with the Law" clearly requires, "Strictly follow the principles of non-retroactivity of the law, legality of crimes and punishments, and lightness between the old and the new, and objectively treat and treat them in accordance with the law. Properly handle the irregularities in the operation of various enterprises, especially private enterprises, since the reform and opening up." In practice, attention can be paid to the following adjudication rules: enterprises have actual production and business activities, and for the purpose of falsely increasing performance, financing, and "leveling" accounts, they falsely issue special VAT invoices without deduction, and do not cause tax losses. The crime of falsely issuing special VAT invoices is punished; in the affiliated relationship, the affiliated person operates in the name of the affiliated person, and the affiliated unit issues special VAT invoices, it does not have the purpose of defrauding state taxes, and has not caused state tax losses, and its behavior should not be punished as the crime of falsely issuing special value-added tax invoices; in addition, if there is a real transaction but it cannot fully correspond to the special value-added tax invoices, it is also inappropriate The crime of falsely issuing special VAT invoices. In short, judicial practice should look at tax-related crimes from a developmental perspective, rather than stagnating in the behavioral-only sense of adjudication, avoiding improper punishment and arbitrary expansion of penalties. </最高人民检察院关于充分发挥检察职能服务保障“六稳”“六保”的意见></全国人民代表大会常务委员会关于惩治虚开、伪造和非法出售增值税专用发票犯罪的决定>
Introduction
Article 205 of my country's "Criminal Law" stipulates the crime of falsely issuing special VAT invoices. From the perspective of legal terms, any "falsely issuing special VAT invoices" can constitute this crime, and the constitutive elements of this crime The type is defined as a criminal. The legislative purpose of this crime is to punish the fraudulent issuance of special VAT invoices to defraud the state of taxes in order to protect two important legal interests: the state's management order for special VAT invoices and the state's tax rights. In the early judicial practice, criminals falsely issued special VAT invoices in order to defraud the state tax, and the expression of the legal provisions of this crime coincides with the actual behavior of the criminals. With the development of economy and society, a large number of acts of falsely issuing special VAT invoices without the purpose of defrauding state taxes have appeared in practice, resulting in deviations between the legal interests protected by legal norms and the legal interests infringed by actual acts, thus making it difficult to convict and punish the crime of falsely issuing special VAT invoices.
1
Legal documents related to the crime of falsely issuing special VAT invoices
In 1996, the Supreme People's Court issued the Supreme People's Court on the application.<全国人民代表大会常务委员会关于惩治虚开、伪造和非法出售增值税专用发票犯罪的决定>The interpretation of a number of issues clearly stipulates that the act of "falsely issuing special VAT invoices" includes:(1) issuing special VAT invoices for others, for themselves, for themselves, for others, and for others to introduce others without purchasing and selling goods or without providing or accepting taxable services;(2) There is a purchase and sale of goods or the provision or acceptance of taxable services but for others, for themselves, let others for themselves, introduce others to issue a special VAT invoice of false quantity or amount;(3) The actual business activities have been carried out, but let others issue special VAT invoices for themselves. The interpretation also stipulates that "those who falsely issue tax amounts of more than 10000 yuan or falsely issue special VAT invoices, resulting in the state tax being defrauded of more than 5000 yuan, shall be convicted and punished according to law."
In 2002, the Supreme Law issued the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Fraud in Export Tax Rebate", in which Articles 3, 4, and 5 all refer to "defrauding state taxes" and "causing state The key element of" tax loss "is the legal benefit of the state's taxation right protected by law.
In 2015, the reply of the Research Office of the Supreme People's Court on how to determine the nature of carrying out business activities in the name of "affiliated" relevant companies and allowing relevant companies to falsely issue special VAT invoices for themselves "pointed out that the affiliated party actually sells goods to the ticket recipient in the form of affiliation, and the affiliated party issues special VAT invoices to the ticket recipient, It is not a false special VAT invoice. Even if there is no affiliated relationship between the actors, but the actors have actual business activities, no subjective intention to defraud taxes, and no consequences of national tax losses, it should not be recognized as falsely issuing special VAT invoices.
2020 on the issuance<最高人民检察院关于充分发挥检察职能服务保障“六稳”“六保”的意见>The "Notice" mentioned that it is necessary to handle corporate tax-related cases carefully in accordance with the law, and grasp the boundary between general violations and crimes for the purpose of defrauding state taxes. If an enterprise has actual business activities for the purpose of falsely increasing performance, financing loans, etc., and does not cause state tax losses, it does not belong to the crime of falsely issuing special VAT invoices.
2
Practical Cases of the Crime of Falsely Issuing Special VAT Invoices and the Gist of the Judgment
(I) Zhang sent back for retrial of innocent case
[Issued by the Supreme People's Court: Typical Cases of People's Courts Giving Full Play to Their Trial Functions to Protect Property Rights and the Legitimate Rights and Interests of Entrepreneurs (Second Batch)]]
Summary of the case:In 2004, the defendant Zhang Mouqiang partnered with others to set up an individual enterprise, a keel factory, and Zhang Mouqiang was responsible for production and operation activities. Because a dragon bone factory is a small-scale taxpayer and cannot issue a special VAT invoice for the purchasing unit, Zhang Mouqiang signed a sales contract in the name of Xinyuan Company run by others. From 2006 to 2007, Zhang Mouqiang successively signed light steel keel sales contracts with six companies. The purchasing units all remitted the payment to Xinyuan Company's account. Xinyuan Company also issued a total of 53 special VAT invoices for the above six companies, with a total price and tax of 4457701.36 yuan and a tax of 647700.18 yuan. Based on the above facts, the people's Procuratorate of a certain state and city accused the defendant Zhang of falsely issuing special VAT invoices.
Summary of the trial:The Supreme People's Court held that the defendant Zhang Mouqiang signed a sales contract in the name of another unit, and the unit collected payment for goods and issued special VAT invoices. It did not have the purpose of defrauding state taxes and did not cause state tax losses. His behavior did not constitute the crime of falsely issuing special VAT invoices. The People's Court of a certain state and city found that Zhang Mouqiang's crime of falsely issuing special VAT invoices was an applicable legal error.
(II) Wang Chao's retrial commuted to no-crime case
[(2021) Lu Xing No. 4]]
Summary of the case:The defendant in the original trial, Wang Chao, was an employee of Company A and also had his own truck transportation business. It undertakes the transportation business from Company A and transports well cement to Company B and C. Because the settlement freight needs to issue transportation invoices with tax deduction function for Company B and Company C, at first the defendant Wang Chao issued invoices from the tax authorities, and the invoicing tax rate was 5.8. From June 2010 to December 2010, Ding Company, which was set up by Guo Mou, issued transportation invoices of 2396828 yuan one after another. Ding Company paid taxes to Yiyuan Local Taxation Department according to the face value of the transportation invoices issued, and Wang Chao paid the invoice fee of 4.6 to the company. After Wang Chao handed over these transportation invoices to Company B and Company C, Company B and Company C used the above invoices to deduct tax 167777.96 yuan.
Summary of the trial:Defendant Wang Chao provided real transportation business, and there was no act of falsely issuing special VAT invoices without real goods transactions, and the special VAT invoices issued were issued according to the real freight amount. The purpose of invoicing is to settle freight with the receiving unit, not to offset tax. Defendant Wang Chao subjectively did not have the criminal intention to defraud the tax deduction. Objectively, he neither used it to deduct the tax by himself nor allowed others to illegally deduct the state tax by using it. He did not cause the loss of the state tax and did not constitute the crime of falsely issuing invoices for tax deduction.
(III) Choi Chi-cheung's retrial commuted to no-crime case
[(2017) Lu 02 Xing Zai No.2]]
Summary of the case:Cui Zhixiang, Cui Baoyou and Company A signed a contract for the transportation of goods. Cui Zhixiang originally issued a transportation invoice at the local tax bureau and provided it to Company A. The invoicing tax rate was 5.8. Later, from June 2010 to March 2011, Cui Zhixiang went to Company B run by Guo Ying to issue 1608270 yuan's transportation invoices one after another. Cui Zhixiang paid the company a 4.6 tax rate for the invoice. Cui Zhixiang handed over these transportation invoices to Company A, which deducted 112578.9 yuan's tax with the above invoices.
Summary of the trial:The act of finding others to issue invoices on behalf of others without the purpose of tax fraud cannot be compared with the social harm of false criminal acts for the purpose of tax fraud. Therefore, it cannot be proved that the defendant has the intention to defraud or help others to defraud tax deduction. Under the circumstances, the act of finding other companies to issue invoices on behalf of others alone does not conform to the original intent of the legislation, nor does it conform to the principle of consistency of subjectivity and the principle of crime and punishment.
3
The reasonable limitation of the elements of this crime.
From the above-mentioned relevant legal documents and precedents, it can be seen that the constituent elements of the crime of falsely issuing special VAT invoices not only include the act of falsely issuing, but also require the actor's act of falsely issuing with the subjective intention of defrauding state taxes. The intention, together with the consequences of the loss of state taxes, has become the judgment standard for the crime of falsely issuing special VAT invoices. If we only explain the provisions of the criminal law by means of literal interpretation, it will make the scope of the crime of falsely issuing special VAT invoices appear unreasonable expansion, resulting in the pre-administrative illegal act of falsely issuing special VAT invoices being included in the scope of the criminal law, which violates the principle of legally prescribed punishment for a crime and the modesty of the criminal law. Only by adopting the method of purposive interpretation and restricting the meaning of the provisions of the criminal law to the purpose can we avoid the divergence between the criminal acts punished by the criminal law and the legal interests protected, prevent objective imputation, and realize the unity of the subjective and objective in essence.
4
Conclusion
After the crime of falsely issuing special VAT invoices is included in the criminal law, it plays an important role in protecting the security and stability of national taxation. After a long period of economic development in China, the external environment of the market has changed, and the awareness of the rule of law of market participants has also been improved to varying degrees. As the Central Committee of the Communist Party of China and the State Council's "Opinions on Improving the Property Rights Protection System and Protecting Property Rights in accordance with the Law" clearly requires, "Strictly follow the principles of non-retroactivity of the law, legality of crimes and punishments, and lightness between the old and the new, and objectively treat and treat them in accordance with the law. Properly handle the irregularities in the operation of various enterprises, especially private enterprises, since the reform and opening up."
In practice, attention can be paid to the following adjudication rules: enterprises have actual production and business activities, and for the purpose of falsely increasing performance, financing, and "leveling" accounts, they falsely issue special VAT invoices without deduction, and do not cause tax losses. The crime of falsely issuing special VAT invoices is punished; in the affiliated relationship, the affiliated person operates in the name of the affiliated person, and the affiliated unit issues special VAT invoices, it does not have the purpose of defrauding state taxes, and has not caused state tax losses, and its behavior should not be punished as the crime of falsely issuing special value-added tax invoices; in addition, if there is a real transaction but it cannot fully correspond to the special value-added tax invoices, it is also inappropriate The crime of falsely issuing special VAT invoices. In short, judicial practice should look at tax-related crimes from a developmental perspective, rather than stagnating in the behavioral-only sense of adjudication, avoiding improper punishment and arbitrary expansion of penalties.
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