葛克昌臺灣大學:法律學研究所藍元駿Lan, Yuan-ChunYuan-ChunLan2010-05-052018-07-052010-05-052018-07-052009U0001-2707200914291300http://ntur.lib.ntu.edu.tw//handle/246246/179638A quick answer to the question of legitimacy of taxation on the public character of tax or its democratic endorsement may often ease the pain from taxpayers. However, if we proceed, to question the legitimacy of tax obligation or tax power in the context of traditional Chinese ideologies, we are bound to face the following question: whether such characters nourished in the west could its resemblance be found in China? If yes, what are the similarities and disparities? If no, whether these characters are worth to be transplanted?iming at the fact that numerous westernized institutions with such foreign characters being implanted as the present situation in the Chinese society, how to mitigate possible contradictions between such western ideologies and intrinsic values rooted deeply in our own tradition is all the more pressing. Discouragingly, such issue in the field of tax jurisprudence seldom raises attention. aking the concept of “limitations of taxation” into account, two corresponding issues could be raised. First, whether such western-bred concept could find its resemblance in traditional China? Secondly, if yes, what are the disparities in between? To simply put, the former deals with the question of “Commonality”, the latter, the question of “Intrinsity”. Such inquiry, in our opinion, has to some extent touched upon the issue of social values underlying norms.n reply to the greetings from the westernized tax normality so as to tax morality, how do Chinese commence communication with its own ideas of taxation thus becomes the core issue. To be explicit, this paper attempts to clarify the foundations of tax normality in the traditional Chinese thoughts through reflections on the limitation theory of taxation harbored in the west.hrough socio-psychological factors indicated by the limitations of taxation in the west, we tend to sort out common features out of the background in the text of 《Discourse on Salt and Iron》. In fact, the two strongly-opposed parties appeared in the “Salt and Iron Meeting” reveals two versions of tax morality, governing the development of two contrasting ideologies of taxation, thus resulting in the confrontations of two interests.n terms of jurisprudence, the above-raised question—that is, the reply of traditional Chinese values (hereinafter “Intrinsity”)—shall be seen as a question of “possibility of reception” (hereinafter “Receptionability”) in the Constitutional level. To further, the question of Receptionability intends to argue whether the question of people’s tolerance to tax burden falls in the category of jurisprudence or not, namely, the question of the relativity of discipline. In reply to this question, we try to find possible answers through the process of how man reaches his understanding of knowledge.e hold the belief that when intrinsic values encounter a foreign culture, be it confrontation or integration, only on a premise of communicability and mutual understandability could interactions between the both sides be of significance and of plausibility.odern State being a tax state, its revenue shall depend on tax revenue as a principle. At the same time, under a state ruled of law, taxation must be in the form of law, thus contributes to the protection of the people. Through constitution, imposition of proper “limitations” on state’s taxation behaviors has been the very mechanism for the protection of taxpayer’s rights. The functioning of the mechanism is centered on the “rights” of taxpayers. To further, once the rights, protected by the constitution, are being infringed by taxation, the constitution could limits such taxation (namely, to nullify such infringement to rights), and reach the goal of protecting taxpayer’s rights.owever, two things could be questioned here. First, whether such limitations—in other words, the approach to simply nullify the source of infringement—could fulfill the purpose of the protection of the rights of the taxpayers is in doubt. Second, even more seriously is the situation that whether the protection of “rights” could actually be the protection of “taxpayers” is dubious. By paying attention of the on-going tax reforms over the years, discussions over tax equity continues to rage. Two things might worth mentioning according to such phenomenon. First, the issue of tax equity to the mass is all the more pressing. Secondly, the problem remains unsolved. Hence, maybe it should worth a try to first look at the constitutionality of the mechanism before we bury ourselves again into the floods of efficiency-oriented schemes in tax reformations. The main focus of this paper, therefore, is how to make revisions or adaptations to limitation in the constitution.TAX STATE AND FISCAL CONSTITUTION 1CKNOWLEDGEMENTS 3BSTRACT - 1 -REFACE - 1 -UTLINE INTRODUCTION INTRINSITY AND COMMONALITY 1ART I COMMONALITIES IN CHINESE AND WESTERN TAX NORMS 9. Possibility of Chinese-Western Tax Morality Comparison 9. 《The Crisis of the Tax State》vis-à-vis《Discourse on Salt and Iron》 10. Possible comparison of Tax Morality– Legitimacy of Tax power as starting point 18. Concrete Benchmark Comparison – the System-and-People Relation 25. Re-examination of Limits of Taxation 26I. Constitutional Limits of Taxation – Elimination of Contradiction between the Power to Tax and the Property Right 31. From Limits in Public Finance to Limits in Constitution 32. Amplifying Contradiction 34. Attempts on elimination of the Contradictory Relation 39. Moral Foundation of Tax Obligation 43II. Choice of Values in Fiscal Constitution – In Search of Intrinsity in Tax Normality 49ART II LIMITATIONS ON TAXATION IN CONSTITUTION 52. Tax State as a choice of value in Constitution 53. Inferences from theories of tax state 54. The constitutional significance of the tax state theory 54. Between tax power and protection of property right—limitations on state’s power to tax 55. The concept of “limitation” and the protection of human rights 55I. The societal character of private property 56. Historical sketches of the development of tax power 56. The reflection of taking “property rights” as a protection mechanism 61II. Constitutional limits of legitimacy of taxes 63. Recognition of social-functioned taxation 64. Shift of moral grounds in legitimacy of taxation 65. The application to taxpayer’s basic rights 66ART III CONSTITUTIONALITY OF LEGITIMACY OF TAXATION 67. Attaching limitation of taxation to taxpayer’s rights 67. Two perspectives of taxpayer’s human rights: basic rights & civil rights 69. The limitations of taxation in the level of Constitution 70I. Approaches for protection of taxpayers in the Constitution 70. Typical legal approach—protection of property rights 70. Specifications in different constitutional contexts 71. A standardized mechanism of traditional approach 75II. Generalization—an attempt for a normative account 77. A Pursuit of Equity over Efficiency 77. Relations of private interests, public welfare, tax obligation 78. Setting priorities to the three elements: prioritization of protection 86V. Reflections on the limitations 89ART IV MORAL GROUNDS FOR RULE OF LAW IN TAXATION 93. Detachment of Form from Substance revisited 93I. Functioning of rule of law in taxation 94. The internal connection between tax system and legal system 94. Rule of law in taxation is a multifaceted notion 95. The essential quality of tax power and its over-respected character 97. Re-examination of the concept of protection of taxpayers’ rights 98II. Reception of tax state theory and its reflections towards legal norms 109. Conversion among disciplines—the disparity between law and economics 110. Tax state as an ideal type: transformation of moral grounds from public finance to jurisprudence 110. An aspect reflexive of legal norms—obedience to tax obligation and obedience to law 111V. Amplification of rule of law in taxation 112. The concept of Intrinsity: An amplification of Freedom and equality of taxpayers 113. The premise of Instrinsity 115. Further inference from the limitations of taxation 116ART V TAX NORMALITY : AN INTRINSIC CONCRETIZATION 123. Substance and Form of a tax norm 123. Re-defining of the Detachment 124. Concretization of Similarities: logical vis-à-vis societal 124I. Understandability and Receptionability 125. Borrowed concept (entlehnter Begriff) and Intrinsic concept (eigener Begriff) 125. Receptionability and Understandability 127. Reception and Transplant of rules and principles 137. Language as Media for communications 142. Communication in rules and in principle 145II. Mitigation between rule and principle 150. Communicability in values 150. Knowledge and Language 150. Communication both in principles and in rules 155ONCLUSION INTRINSIC VALUE JUDGMENTS IN TAXATION LAW 161. Fiscal Constitution—positioning the relation of taxpayers and tax systems 161. Two factors: Society and Constitution 162. The people-institution relation 162I. Taxpayer’s behavior in tax jurisprudence 163. reconstruction of objective and subjective 165. Starting from Interpretation 165. Analogy to thoughts 167II. Taxpayer within the institution and within the society 168. A portrait of the behavior of taxpayers 168. freedom and equality in tax law: connection between motivation and behavior 170. Institutional effects on taxpayer’s behavior 171. Legal premise for homo economicus : adaptation towards homo sociologus 173V. Ancient Voices, Modern Echoes—aiming at the moral grounds for tax obligation 174IBLIOGRAPHY iPPENDIX: TRANSLATIONS & ANNOTATIONS OF THE TWO TEXTS xxiiiapplication/pdf1628495 bytesapplication/pdfen-US課稅正當性租稅倫理稅法規範租稅國危機鹽鐵論課稅界限財政社會學義利之辨原則規則理論語言相對性繼受固有性limitation of taxationlegitimacy of taxationtax moralitytax normalityintrinsic values (Intrinsity)Reservation of law (Vorbehalt des Gesetzes)Rule of law in taxation (Gesetzmae&szligigkeit der Besteuerung)obligation to pay taxrule and principlelanguage relativitythesishttp://ntur.lib.ntu.edu.tw/bitstream/246246/179638/1/ntu-98-D94a21001-1.pdf