强化监管堵住漏洞 我国构建打击涉税违法犯罪新格局

Strengthening supervision and plugging loopholes in China's construction of a new pattern for cracking down on tax related illegal crimes

我国构建打击涉税违法犯罪新格局

Building a new pattern of cracking down on tax related Illegal crimes in China.

不让政策“红包”落入不法分子“腰包”

Prevent policy red envelopes from falling into the pockets of criminals

本报记者 张昊

Our reporter Zhang Hao

3月29日，《国家税务总局2023年法治政府建设情况报告》发布。针对2023年税收法治建设情况，该报告介绍说：“在严厉打击涉税违法犯罪行为方面，加强常态化打击涉税违法犯罪工作机制建设，最高人民法院、市场监督管理总局正式加入，成员单位由六部门拓展到八部门，进一步健全从行政执法到刑事司法全链条、一体化打击涉税违法犯罪的工作格局。”

On March 29th, the 2023 Report on the Construction of a Rule of Law Government by the State Administration of Taxation was released. In response to the situation of tax rule of law construction in 2023, the report introduces: "In terms of cracking down on tax related illegal and criminal activities, we will strengthen the construction of a normalized mechanism for cracking down on tax related illegal and criminal activities. The Supreme People's Court and the State Administration for Market Regulation have officially joined, and member units have expanded from six departments to eight departments, further improving the work pattern of the entire chain from administrative law enforcement to criminal justice, and integrating the crackdown on tax related illegal and criminal activities."

在此之前，最高人民法院、最高人民检察院发布了《关于办理危害税收征管刑事案件适用法律若干问题的解释》，在整合现行相关税收犯罪司法解释的基础上，首次对危害税收征管罪的法律适用问题进行整体性解释，为依法、精准、有力惩治涉税犯罪提供了明确的规范指引。

Prior to this, the Supreme People's Court and the Supreme People's Procuratorate issued the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Harmful Tax Collection and Management. Based on the integration of current judicial interpretations on tax related crimes, the Interpretation provides a comprehensive interpretation of the legal application of crimes involving harmful tax collection and management for the first time, providing clear normative guidance for the lawful, accurate, and effective punishment of tax related crimes.

税收是国家财政的最主要来源，危害国家税收的犯罪破坏了国家税收征管秩序、社会信用体系。一年来，我国不断深化完善联合打击工作机制，推动行政执法和刑事司法有效衔接，依法严厉打击涉税违法犯罪行为，防止政策“红包”落入不法分子“腰包”。

Taxation is the main source of national finance, and crimes that harm national taxation disrupt the order of national tax collection and management, as well as the social credit system. Over the past year, China has continuously deepened and improved the joint crackdown mechanism, promoted effective connection between administrative law enforcement and criminal justice, and strictly cracked down on tax related illegal and criminal activities in accordance with the law, preventing policy red envelopes from falling into the pockets of criminals.

在依法办理涉税收征管刑事案件中，司法机关如何做到严格贯彻宽严相济刑事政策，在“治罪”与“治理”之间做好平衡，营造良好营商环境，护航经济高质量发展？《法治日报》记者就此进行了采访。

In handling criminal cases involving tax collection and management in accordance with the law, how can judicial authorities strictly implement the criminal policy of combining leniency and severity, strike a balance between "punishment" and "governance", create a good business environment, and safeguard high-quality economic development? A reporter from the Legal Daily conducted an interview on this matter.

当严则严当宽则宽

When it is strict, it is strict, when it is lenient, it is lenient

2023年1月，四川某食品有限公司、郑某某涉嫌逃税罪被提起公诉。

In January 2023, a food company in Sichuan and Zheng were prosecuted on suspicion of tax evasion.

“公司效益不好，我们一时拿不出这么多钱补缴税款……”郑某某来到四川省仁寿县人民法院领取起诉书时对法官说。

"The company's performance is not good, and we can't afford to pay taxes with so much money at the moment..." Zheng said to the judge when he came to Renshou County People's Court in Sichuan Province to collect the indictment.

承办该案的仁寿县法院刑事审判庭法官耿向波看到该案的案卷中记载着“郑某某接到公安机关电话通知后自首”的情形，结合促进民营经济健康发展的工作要求，主动提出去企业实地了解一下经营情况。

Judge Geng Xiangbo from the Criminal Trial Division of Renshou County Court, who handled the case, saw in the case file that "Zheng surrendered himself after receiving a phone call notification from the public security organs." In combination with the work requirements to promote the healthy development of the private economy, he took the initiative to go to the enterprise to investigate the business situation on site.

走访中，耿向波了解到，被告单位是一家福利性企业，解决了附近十几名残疾人职工的就业，还承担着一定的社会责任。

During the visit, Geng Xiangbo learned that the defendant's unit is a welfare enterprise that has solved the employment of more than ten disabled workers nearby and also bears certain social responsibilities.

“要贯彻‘治罪’与‘治理’并重的理念。”耿向波说，针对涉案企业未能如期补缴税款的情况，法院在判决前与税务机关多次沟通补缴税款政策，帮助企业制定申请延期分批缴纳税款计划，并得到税务机关认可。

"We must implement the concept of balancing 'punishment' and 'governance'. Geng Xiangbo said that in response to the situation where the involved enterprises failed to pay taxes on time, the court had communicated with the tax authorities multiple times before the judgment on the policy of paying taxes, helping the enterprises develop plans to apply for an extension of tax payment in batches, which were recognized by the tax authorities.".

2023年3月，仁寿县法院联合税务机关对被告单位进行企业经营风险审查，在企业开展合规整改后，对被告单位和被告人郑某某从宽处罚，有效避免了企业因一案而垮掉的结果。

In March 2023, the Renshou County Court, in conjunction with the tax authorities, conducted a business risk review on the defendant unit. After the company carried out compliance rectification, the defendant unit and defendant Zheng were given lenient punishment, effectively avoiding the collapse of the company due to a single case.

记者注意到，人民法院在办理涉税收征管刑事案件时，严格贯彻宽严相济刑事政策。

The reporter noticed that the people's court strictly implements the policy of combining leniency and severity in handling criminal cases related to tax collection and management.

福建省厦门市集美区人民法院在走访调研辖区民营企业时了解到，某颇具发展前景的数控设备公司及其法定代表人因犯虚开增值税专用发票罪被判处刑罚，企业纳税信用降级，影响投标申贷和经营发展。在企业履行罚金刑缴纳义务后，法院协调推动税务合规整改，帮助企业修复信用、及时纾困解难。

The People's Court of Jimei District, Xiamen City, Fujian Province, during a visit to private enterprises in its jurisdiction，learned that a CNC equipment company with promising development prospects and its legal representative were sentenced to punishment for the crime of falsely issuing value-added tax special invoices, and the company's tax credit was downgraded, affecting bidding, loan application, and business development. After the enterprise fulfills its obligation to pay fines and penalties, the court coordinates and promotes tax compliance rectification, helping the enterprise repair its credit and timely alleviate difficulties.

在安徽省铜陵市郊区人民法院办理的石某某等骗取出口退税案中，石某某等将低廉的商品通过虚开增值税专用发票，虚抬价格后(即“低值高报”)报关出口，骗取出口退税款570余万元。石某某被依法判处有期徒刑十一年，并处罚金人民币五百万元。同案被告人分别被判处有期徒刑五年至六年，并处罚金。被告人石某某等不服一审判决提出上诉，二审法院判决维持对各被告人的定罪量刑。

In the case of Shi and others fraudulently obtaining export tax refunds handled by the People's Court in the suburbs of Tongling City, Anhui Province, Shi and others declared low value goods for export by falsely issuing value-added tax special invoices, inflating prices (i.e. "low value high declaration"), and obtained export tax refunds of more than 5.7 million yuan. Shi was sentenced to eleven years in prison and fined five million yuan in accordance with the law. The defendants in the same case were respectively sentenced to imprisonment of five to six years and fined. Defendants Shi and others appealed against the first instance judgment, and the second instance court upheld the conviction and sentencing of each defendant.

司法机关在办案中应主要考虑哪些因素和影响，如何区分情况并把握好“当严则严、当宽则宽”？

What factors and influences should judicial mainly consider in handling cases, how to distinguish situations and grasp "when it is strict, it is strict, and when it is lenient, it is lenient"?

最高法审委会委员、刑四庭庭长滕伟说，人民法院办理涉税刑事案件时，一方面对严重危害税收征管犯罪必须坚决从严打击，有效维护国家税收征管秩序和国家财产安全。

Teng Wei, member of the Supreme People's Court and President of the Fourth Criminal Court, said that when handling tax related criminal cases, on the one hand, the people's courts must resolutely crack down on crimes that seriously endanger tax collection and management, effectively maintaining the order of national tax collection and management and national property security.

滕伟举例说，人民法院依法惩治危害税收征管犯罪，重点从严打击骗取出口退税，空壳公司虚开、非法出售增值税专用发票等涉税犯罪行为。

Teng Wei gave an example that the people's court punished crimes that endanger tax collection and management in accordance with the law, with a focus on cracking down on tax related crimes such as fraudulently obtaining export tax refunds, shell companies falsely issuing and illegally selling value-added tax special invoices.

“另一方面，对实体企业涉税犯罪区分情况，做到当宽则宽，对情节较轻、危害不大，因有关人员法治意识淡薄、企业规章制度不健全等原因实施的犯罪，尽可能给予企业合规整改机会，对于能够通过合规整改挽回税款损失的，依法从宽处理，最大限度减少对企业生产经营的影响。”滕伟说。

"On the other hand, for tax related crimes committed by physical enterprises, the distinction should be made. When they are lenient, they should be lenient. For crimes committed due to weak legal awareness among relevant personnel and inadequate corporate rules and regulations, opportunities for compliance rectification should be given as much as possible. For those who can recover tax losses through compliance rectification, leniency should be given in accordance with the law to minimize the impact on the production and operation of the enterprise." Teng Wei said.

强化监管堵住漏洞

Strengthen supervision and block loopholes

最高检法律政策研究室副主任余双彪介绍说，贵金属、农产品、废旧物资、电子产品、石化、煤炭等行业仍是虚开骗税犯罪高发领域。跨境电商、直播带货等新兴经济业态迅猛发展，其税收监管措施面临新挑战。

Yu Shuangbiao, Deputy Director of the Law and Policy Research Office of the Supreme People's Procuratorate, introduced that industries such as precious metals, agricultural products, waste materials, electronic products, petrochemicals, and coal are still high-risk areas for tax fraud. The rapid development of emerging economic formats such as cross-border e-commerce and live streaming sales poses new challenges to their tax regulatory measures.

江苏省徐州市鼓楼区人民检察院办理网红主播偷逃税款行政公益诉讼案，推动税务部门开展网络直播行业专项税务稽查活动；

The People's Procuratorate of Gulou District, Xuzhou City, Jiangsu Province handled an administrative public interest lawsuit against internet celebrity broadcasters for tax evasion, and promoted the tax department to carry out special tax inspections in the online live streaming industry;

湖北省随县人民检察院在办理某农产品出口企业涉嫌骗取出口退税案后，结合案涉企业利用虚开农产品收购发票、虚假购销合同、虚假结汇等手段牟利的情况，向税务机关发出检察建议；

After handling the case of a certain agricultural product export enterprise suspected of fraudulently obtaining export tax refunds, the People's Procuratorate of Suixian County, Hubei Province, combined with the situation of the enterprise involved in the case using false agricultural product purchase invoices, false purchase and sales contracts, false foreign exchange settlement and other means to profit, issued a procuratorial recommendation to the tax authorities;

广西壮族自治区合浦县人民检察院结合办案，以“检察建议+专题报告”形式推动税务部门与相关行政机关建立健全耕地占用税税收协作机制；

The People's Procuratorate of Hepu County, Guangxi Zhuang Autonomous Region, in conjunction with the handling of cases, promotes the establishment and improvement of a tax cooperation mechanism for farmland occupation tax between tax departments and relevant administrative agencies in the form of "prosecutorial suggestions+special reports";

……

...

减少、防范税收犯罪，关键要在制度上、监管上下功夫。检察机关紧盯重点领域，做到完善制度与强化监管并重。

To reduce and prevent tax crimes, the key is to work hard on the system and supervision. The procuratorial organs keep a close eye on key areas, and pay equal attention to improving the system and strengthening supervision.

近年来，最高检直接立案办理了污染企业违规享受资源综合利用增值税优惠政策案，部署开展成品油行业涉税违法犯罪专项整治工作，带动各级检察院不断加强类案办理工作。

In recent years, the Supreme People's Procuratorate has directly filed and handled cases of polluting enterprises enjoying preferential value-added tax policies for comprehensive utilization of resources in violation of regulations, deployed and carried out special rectification work on tax-related crimes in the refined oil industry, and led procuratorates at all levels to continuously strengthen the handling of similar cases.

检察机关还通过建立大数据监督模型实现执法司法能力“升级”。余双彪说，浙江、天津等地检察机关运用大数据监督模型办案的同时推动了综合治理。

The procuratorate has also achieved the "upgrade" of law enforcement and judicial capabilities by establishing a big data supervision model. Yu Shuangbiao said that the procuratorial organs in Zhejiang, Tianjin and other places have promoted comprehensive governance while using big data supervision models to handle cases.

提升依法治税水平

Improve the level of taxation according to law

近年来，涉税刑事、行政、民事诉讼和执行案件的数量呈现增长态势。涉税案件专业性强、法律关系复杂等特点突出。

In recent years, the number of tax-related criminal, administrative, civil and enforcement cases has shown an increasing trend. Tax-related cases have prominent characteristics such as strong professionalism and complex legal relations.

去年，为落实党中央、国务院授权厦门开展的“探索涉税案件集中管辖”改革任务，福建省厦门市中级人民法院指定思明区人民法院承接该项目，集中管辖全市应当由基层法院审理的刑事、民事、行政涉税案件，并由思明市人民检察院集中履行法律监督职责。

Last year, in order to implement the reform task of "exploring centralized jurisdiction of tax-related cases" authorized by the Party Central Committee and the State Council in Xiamen, the Intermediate People's Court of Xiamen City, Fujian Province designated the Siming District People's Court to undertake the project, and centralized jurisdiction over criminal cases that should be tried by grassroots courts in the city., civil, and administrative tax-related cases, and the Siming City People's Procuratorate performs legal supervision duties in a centralized manner.

2023年11月28日，思明区法院涉税案件合议庭正式成立。这是全国首个涉税案件“三合一”集中管辖专门合议庭。

On November 28, 2023, the collegial panel for tax-related cases of Siming District Court was formally established. This is the country's first "three-in-one" special collegial panel with centralized jurisdiction over tax-related cases.

“涉税案件合议庭旨在提升涉税案件集中管辖审理的专业化水平，以司法服务保障税收法治化现代化、构建一流营商环境。”思明区法院院长黄冬阳说，涉税案件合议庭成立以来，受理虚开增值税发票、房地产开发企业所得税清缴、出口退税等各类涉税案件14件，审结7件，通过涉案企业合规改革帮助1278家企业修复信用。

"The collegial panel for tax-related cases aims to improve the professional level of centralized jurisdiction and trial of tax-related cases, ensure the modernization of the rule of law in taxation with judicial services, and build a first-class business environment." Huang Dongyang, president of the Siming District Court, said that since the establishment of the collegial panel for tax-related cases, it has accepted various tax-related cases such as false issuance of value-added tax invoices, income tax payment of real estate development companies, and export tax rebates, and concluded 7 cases, helping 1,278 companies restore their credit through compliance reforms of companies involved in the case.

“涉税案件合议庭成立后，通过建立府院共治长效机制，推动双方在税务执法和司法机关查处、立案、审查起诉和审判标准上形成共同认知，在前端化解征纳矛盾，规范征纳行为，降低税收征管和监督风险，提升依法治税水平。”黄冬阳说，《厦门税费共治保障办法》(以下简称《办法》)的出台就是深化府院互动的成果。

"After the establishment of the collegial panel for tax-related cases, through the establishment of a long-term mechanism for the co-governance of the government and the court, the two parties will be promoted to form a common understanding on tax law enforcement and judicial investigation, filing, review and prosecution, and trial standards, and resolve conflicts in collection and collection at the front end, standardize collection and collection Behavior, reduce the risk of tax collection, management and supervision, and improve the level of tax governance according to law." Huang Dongyang said that the introduction of the "Xiamen Tax and Fee Co-governance Guarantee Measures" (hereinafter referred to as the "Measures") is the result of deepening the interaction between the government and the court.

黄冬阳介绍说，《办法》在破产清算案件、法拍资产涉税事项处理、税收强制执行等方面，强化行政执法与司法审判的流程接续，推动构建法院与税务机关的智慧联通渠道，建立信息传递、协作办理的智能传输系统，不断提升税务执法与司法工作衔接的规范性、便捷性、精准性。

Huang Dongyang said that the "Measures" strengthen the process continuity of administrative law enforcement and judicial trials in terms of bankruptcy liquidation cases, handling of tax-related matters related to foreclosure assets, and tax enforcement, promote the construction of smart connectivity channels between courts and tax authorities, and establish information transmission., The intelligent transmission system of collaborative handling continuously improves the standardization, convenience, and accuracy of the connection between tax law enforcement and judicial work.

面对新形势，各地检察机关充分发挥职能作用，探索涉税案件企业合规指引，在提升司法办案能力的同时，促进提升依法治税水平。

In the face of the new situation, procuratorial organs in various places have given full play to their functions, explored corporate compliance guidelines for tax-related cases, and promoted the improvement of tax governance according to law while improving judicial case handling capabilities.

北京市海淀区人民检察院在办案中与税务机关充分沟通协作，引导企业在补缴涉案的增值税、消费税外，同时补缴与之关联的企业所得税、三项附加、滞纳金等税费，2022年10月以来累计为国家追回税款损失1.21亿余元。

The People's Procuratorate of Haidian District, Beijing fully communicated and cooperated with the tax authorities in handling the case, and guided enterprises to pay the related corporate income tax, three surcharges, late fees and other taxes and fees in addition to the value-added tax and consumption tax involved in the case. Since October, a total of more than 121 million yuan in tax losses have been recovered for the country.

依托行刑反向衔接机制，海淀区检察院对案件中不需要判处刑罚并作出相对不起诉的涉案企业以制发检察意见书的方式向税务机关移送行政处罚线索，说明涉案企业认罪认罚情况及补缴税费情况，对符合法律规定的企业，建议税务机关从轻处理。

Relying on the reverse connection mechanism of execution, the Haidian District Procuratorate transferred clues to administrative punishment to the tax authorities by issuing procuratorial opinions to the enterprises involved in the case that do not need to be sentenced to punishment and make relatively non-prosecution, explaining the situation of the enterprises involved in the case pleading guilty and accepting punishment and making up for the payment of taxes and fees. For enterprises that comply with the law, it is recommended that the tax authorities deal with them lightly.

海淀区检察院与北京市海淀区工商业联合会联合发布《危害税收征管犯罪涉案企业合规整改指南》，让涉案企业在合规建设过程中有章可循，让第三方监管组织在企业合规上有据可依。

The Haidian District Procuratorate and the Beijing Haidian District Federation of Industry and Commerce jointly issued the "Guidelines for the Compliance Rectification of Enterprises Involved in Crimes Endangering Tax Collection and Management", so that the enterprises involved in the case have rules to follow in the process of compliance construction, and allow third-party regulatory organizations to improve corporate compliance. There is evidence to rely on.

上海市黄浦区人民检察院先后参与办理了市公安局经侦总队联合市税务部门破获的上海市首起利用“加计折减”等多个税收优惠政策实施犯罪的虚开发票案等系列案件，还探索深化涉税案件企业合规改革，发布了《涉税案件企业合规验收评估指引》。

The People's Procuratorate of Huangpu District, Shanghai has successively participated in the handling of a series of cases such as Shanghai's first false invoice case cracked by the Economic Investigation Corps of the Municipal Public Security Bureau and the Municipal Taxation Department. Explore and deepen the compliance reform of enterprises in tax-related cases, and issued the "Guidelines for Compliance Acceptance and Evaluation of Enterprises in Tax-related Cases".

“依法打击涉税犯罪，营造风清气正的营商环境，这是对市场主体合法经营的最好保护。”滕伟说。(法治日报)

"Cracking down on tax-related crimes in accordance with the law and creating a clean and upright business environment is the best protection for the legal operation of market players," Teng Wei said. (Rule of Law Daily)