税收剩余立法权的界限——以成品油消费课税规则的演进为样本  

The Allocation and Definition of Residual Law-making Power of Taxation——Taking for Example the Evolution of Taxation Rules for the Consumption of Refined Oil Products

作　　者：叶姗[1] 

机构地区：[1]北京大学法学院,北京100871

出　　处：《北京大学学报（哲学社会科学版）》2013年第6期125-132,共8页Journal of Peking University(Philosophy and Social Sciences)

基　　金：司法部国家法治与法学理论研究项目中青年课题"府际税收竞争的法律规制研究"(12SFB3030)

摘　　要：我国成品油消费课税规则的演进主要依循征税范围扩大、单位税额提高、免税项目立废和征税环节调整等思路:最初决定开征消费税的法律文本是国务院制定的《消费税暂行条例》,而变更成品油消费课税规则的法律文本则主要是国务院及其财税主管部门制定的税收规范性文件。因国务院转授权或税法规范内在的不完备性而需要由财税执法机关行使的创制课税规则的权力可概称为税收剩余立法权,以解决因税收立法使用不确定法律概念和抽象性条款而造成的适用难题。财税执法机关行使税收剩余立法权应当以补充法律的不完备部分为限,承认财税执法机关享有这种立法权,主要是为了规范其行使而不仅仅是赋权。The evolution of taxation rules for the consumption of refined oil products in our country has complied with such principles as enlarging the levying scope, increasing the unit tax, formulating and abolishing tax-exempt items, and readjusting tax-payment stage. The first legal text aimed to collect consumption tax was the Interim Regulation on Consumption Tax formulated by the State Council, while the legal texts to modify taxation rules for the consumption of refined oil products were regulatory documents of taxation formulated respectively by the State Council, its departments in charge of finance and taxation, and the administration of taxation and tax authorities at the provincial level. The power to formulate taxation rules exerted by fiscal and taxation departments for law enforcement because of the incompleteness of the transfer authorization by the State Council and the incompleteness of the administrative regulations of taxation can be called residual law-making power of taxation, which can be used to solve the difficult problems in their application rendered by the fact that abstract clauses and indefinite legal concepts were adopted during the tax revenue legislation. When the fiscal and taxation departments for law enforcement exert residual law-making power of taxation, they should be confined to the supplement of the incomplete parts of laws, and be entitled to exercise the residual law-making power of taxation. This is mainly aimed at standardizing their power instead of empowering them.

关 键 词：税收剩余立法权 课税规则 法律不完备性 不确定法律概念 税收规范性文件 

分 类 号：D920.0[政治法律—法学]