How to use the penalty of tax evasion to prevent the tax lawyer network


2022-08-08: [Chinese Article Link]  Amendment (vii) to the Criminal Code, which was introduced on 28 February 2009, introduced a significant revision of the provisions of article 210 of the 1997 Penal Code relating to the offence of tax evasion in terms of offences, objective behaviour, criteria for sentencing, etc., of most concern is the addition of a penalty deterrent. Article 12 of the current Penal Code clearly establishes the principle of the retroactivity of criminal law from the old to the lesser, so that the penalty for tax evasion has gained some retroactive effect. It is proposed to provide a brief analysis of how the courts correctly apply the penalty for tax evasion and explain how rights are upheld in cases where the courts do not apply the penalty as provided for in article 12 of the Criminal Code. I. Historical reform of our criminal law from the old principle of subsidiarity The principle of the extenuation of criminal law is a fundamental principle of the modern system of criminal law in countries with civil law systems, such as Germany and Japan, which clearly provide for the retroactivity of criminal law from the old. For example, article 6 of the Japanese Penal Code provides that “when the law after the commission of the offence changes the penalty, the law applying the lighter penalty shall apply.” For example, article 2 of the Criminal Code of our Taiwan Region provides that “a person who has changed the law after the commission of the act shall apply the law in the case of the act”. However, the law after the act is in the interests of the perpetrator and the law in the best interest of the perpetrator applies.” (i) The 1979 Penal Code establishes the principle of subordination from the old. Our 1979 Penal Code, published on 6 July 1979 and implemented on 1 January 1980, also clearly establishes the principle of the extenuation of criminal law. Article 9 of the 1979 Penal Code provides that “This Law shall enter into force on 1 January 1980 and, after its establishment, shall apply the laws, decrees and policies of the People's Republic of China, if the laws, decrees and policies of the People's Republic of China at that time are not considered criminal. If the laws, decrees and policies of the time are deemed to be crimes, they shall be pursued in accordance with the provisions of chapter IV, section 8, of the General Provisions of this Law, and criminal liability shall be pursued in accordance with the laws, decrees and policies of the time. However, if the Act is not considered to be an offence or a lesser penalty, the Act applies.” According to this, the 1979 Penal Code applies directly to acts committed prior to the commission of the offence if the criminal law at the time of the act does not consider the act to be a crime; if the criminal law at the time of the act considers the offence and the 1979 Penal Code does not consider the offence or the penalty to be a lesser offence, the 1979 Penal Code applies. (ii) The 1997 Penal Code amended and adapted the old principle of subsidiarity In 1997, the Fifth National People's Congress made significant amendments to the 1979 Penal Code, which amended and adjusted article 9 of the 1979 Penal Code. Article 12 of the Penal Code of 1997 provides that “when the Chinese People's Republic was established, this Law shall apply to acts committed prior to the time when the law at that time did not consider them to be crimes; if the law at that time considers them to be crimes, it shall be pursued in accordance with the provisions of chapter IV, section 8, of the General Provisions of this Law, and criminal liability shall be incurred in accordance with the law at that time, but this Law shall apply if it is not deemed to be a crime or if the punishment is lighter. This Act shall remain in force until such time as a judgement has been rendered in force in accordance with the law of the time. " Article 12 of the Criminal Code of 1997 adds to article 6 of the Penal Code of 1979 provisions on the applicability of the new law to convicted persons, according to which the new law no longer applies retroactively to perpetrators whose acts have been adjudicated in force under the law of the time until the new law is in force. (iii) Our criminal justice interpretation is also guided by the old principle of subsidiarity In December 2001, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Regulations of the Supreme People's Court and the Supreme People's Procuratorate on the question of the temporal validity of the application of the interpretation of criminal justice [2001] 5, which clearly set out the principle of extenuating from the old and mitigating, as well as the principle of extenuating criminal justice in our country. According to the provisions of articles 3 and 4 of the judicial interpretation, the existing judicial interpretation was applied in respect of acts that occurred prior to the application of the new judicial interpretation; however, the new judicial interpretation was more favourable to the perpetrator and a new judicial interpretation was applied; and the new judicial interpretation was no longer applied retroactively in cases that had been settled prior to the application of the new judicial interpretation. II. RESTRICTIONS ON RESTRICTIONS ON THE APPLICATION OF RESTRICTIONS FOR RESTRICTIONS (i) Retroactivity of penalties for tax evasion On 28 February 2009, the Standing Committee of the National People's Congress issued Amendment (VII) to the Criminal Code of the People's Republic of China, amending article 210 of the Penal Code to read: “The taxpayer who fraudulently, conceals or fails to make a false tax declaration, evades the payment of more than 10 per cent of the taxable amount and shall be sentenced to imprisonment for a term not exceeding three years or to detention and a fine; the amount shall be imprisonment for a term not less than three years and not more than thirty per cent of the taxable amount, and the fine shall be imprisonment for a term not less than three years and not more than seven years. A person who withholds payment of an obligation by the means set out in the preceding paragraph shall be punished in accordance with the provisions of the preceding paragraph if he does not pay, or fails to pay, the taxes withheld or collected. In the case of repeated commission of the first two paragraphs, unprocessed amounts are calculated on the basis of cumulative amounts. In the first case, the tax authorities shall not be held criminally liable for the payment of tax dues and the payment of late payments, if they have been subject to administrative penalties, following a notice of recovery issued by the tax authorities in accordance with the law, unless they have received criminal penalties for evasion of payment of taxes within five years or have been subject to more than two administrative penalties imposed by the tax authorities.” Thus, the conduct of the taxpayer (which does not include the withholding of the obligor) falls within the constituent elements of the offence of tax evasion and is not subject to criminal liability if the following conditions are met: (1) The taxpayer is liable to administrative penalties for the payment of tax dues and late payments following a notice of recovery issued by the tax authorities in accordance with the law; (2) The taxpayer has not been criminally punished for tax evasion for a period of five years; (3) The taxpayer has not been subject to more than two administrative penalties by the tax authorities for tax evasion within five years. The above-mentioned provisions of article 201, paragraph 4, of the Penal Code, which are a statutory deterrent to punishment, clearly benefit the accused as compared with the provisions of the pre-amendment, and therefore have retroactive effect under article 12 of the Criminal Code. (ii) Rules for penalties for tax evasion that apply retroactively to the subject matter Under article 12 of the Criminal Code, the retroactive application of the new law requires two conditions, one that the perpetrator's conduct has not yet been adjudicated in force, i.e. that the application of the new law is earlier than the judgement in force, and the other that the new law does not consider the perpetrator's conduct to be a crime or a lesser penalty than the old law. 1. Convicted persons A convicted person is defined as the state in which the court has given a valid judgement in respect of the acts of the accused, and according to article 12 of the Criminal Code, the court has given a final judgement in respect of the perpetrator, i.e. the new law is enforced later than the judgement in respect of which it entered into force, and the new law is no longer retroactive. Thus, even if the perpetrator has met the conditions for the application of the penalty for obstruction provided for in amendment (vii) of the Criminal Code, the sentence cannot be commuted if the perpetrator has already been given a valid judgement by a court before 28 February 2009 constituting the offence of tax evasion. 2. Outstanding offences The so-called outstanding offender is the state in which the court has not yet given a valid judgement on the conduct of the accused, and the person who appealed or resisted after the first instance judgement was rendered is also a pending offender. In accordance with article 12 of the Criminal Code, the new law may be applied retroactively in cases where the court has not yet rendered a judgement in force against the perpetrator, i.e. before the entry into force of the new law. Thus, when the perpetrator has been sentenced by a court after 28 February 2009 for tax evasion, the court shall apply the provisions of amendment (vii) of the Criminal Code to rule on the perpetrator if the perpetrator meets the penalty for obstruction provided for in amendment (vii). 3. Inter-criminals The criminal law does not expressly provide for the application of the old principle of reciprocity in the case of an offender who is an indeterminate condition of the perpetrator's conduct and the date on which the new law was applied during the duration of the perpetrator's conduct. In December 1998, the Supreme People's Procuratorate regulated the issue. In accordance with the provisions of the Supreme People's Procuratorate on the approval of the question of how criminal law should be applied specifically in respect of continuing crimes, continuing crimes and other offences of the same kind that have crossed the date of application of the revised penal code (high-level review [1998] 6), the 1997 Penal Code should be applied to acts that began before 30 September 1997 and continued beyond 1 October 1997; however, if the 1997 Penal Code is lower than the threshold of incorporation provided for in the 1979 Penal Code or if the statutory penalty is heavier, it should be taken into account in the prosecution of a case that the 1979 Penal Code has a lighter sentence. Since document [1998] 6 of the Supreme Court addressed only how the perpetrator's conduct was to be dealt with in the context of the 1997 Criminal Code, with certain limitations, it established the basic principles for the application of the old and the new criminal law to cross-criminals. In other words, the provisions of the new Criminal Code should be applied to the criminalization of the perpetrator's conduct, which transcends those of the old and the new Criminal Code; however, if the statutory penalties provided for in the old Code are lighter, consideration should be given to the possibility of lightening them by reference to the provisions of the old Criminal Code. The fact that the offence of tax theft is a typical continuing offence and that its conduct is of a continuing nature does not arise after 28 February 2009, when the alleged tax evasion was terminated after 28 February 2009, means that the court's decision will necessarily be rendered after the application of the amendment (vii) to the Criminal Code, and that the court should apply directly the provisions of the amendment (vii) to the Criminal Code on the offence of tax evasion. III. Summary Amendment (vii) to the Penal Code increases the penalty for tax evasion, which is more favourable to the perpetrator than the previous provision, but which, according to the old principle of reciprocity in article 12 of the Penal Code, has the retroactive effect of applying the penalty in priority to persons who have not been convicted since 28 February 2009. If the court fails to apply the conditions applicable to the perpetrator's punishment for the offence of tax evasion, in violation of the old principle of subsidiarity, it is clearly a mistake in the applicable law and the person may actively defend his or her legitimate interests.


Note: This is a machine translated version of the Chinese news media article. A mature and nuanced reading is suggested.




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How to use the penalty of tax evasion to prevent the tax lawyer network


2022-08-08: [Article Link]  Amendment (vii) to the Criminal Code, which was introduced on 28 February 2009, introduced a significant revision of the provisions of article 210 of the 1997 Penal Code relating to the offence of tax evasion in terms of offences, objective behaviour, criteria for sentencing, etc., of most concern is the addition of a penalty deterrent. Article 12 of the current Penal Code clearly establishes the principle of the retroactivity of criminal law from the old to the lesser, so that the penalty for tax evasion has gained some retroactive effect. It is proposed to provide a brief analysis of how the courts correctly apply the penalty for tax evasion and explain how rights are upheld in cases where the courts do not apply the penalty as provided for in article 12 of the Criminal Code. I. Historical reform of our criminal law from the old principle of subsidiarity The principle of the extenuation of criminal law is a fundamental principle of the modern system of criminal law in countries with civil law systems, such as Germany and Japan, which clearly provide for the retroactivity of criminal law from the old. For example, article 6 of the Japanese Penal Code provides that “when the law after the commission of the offence changes the penalty, the law applying the lighter penalty shall apply.” For example, article 2 of the Criminal Code of our Taiwan Region provides that “a person who has changed the law after the commission of the act shall apply the law in the case of the act”. However, the law after the act is in the interests of the perpetrator and the law in the best interest of the perpetrator applies.” (i) The 1979 Penal Code establishes the principle of subordination from the old. Our 1979 Penal Code, published on 6 July 1979 and implemented on 1 January 1980, also clearly establishes the principle of the extenuation of criminal law. Article 9 of the 1979 Penal Code provides that “This Law shall enter into force on 1 January 1980 and, after its establishment, shall apply the laws, decrees and policies of the People's Republic of China, if the laws, decrees and policies of the People's Republic of China at that time are not considered criminal. If the laws, decrees and policies of the time are deemed to be crimes, they shall be pursued in accordance with the provisions of chapter IV, section 8, of the General Provisions of this Law, and criminal liability shall be pursued in accordance with the laws, decrees and policies of the time. However, if the Act is not considered to be an offence or a lesser penalty, the Act applies.” According to this, the 1979 Penal Code applies directly to acts committed prior to the commission of the offence if the criminal law at the time of the act does not consider the act to be a crime; if the criminal law at the time of the act considers the offence and the 1979 Penal Code does not consider the offence or the penalty to be a lesser offence, the 1979 Penal Code applies. (ii) The 1997 Penal Code amended and adapted the old principle of subsidiarity In 1997, the Fifth National People's Congress made significant amendments to the 1979 Penal Code, which amended and adjusted article 9 of the 1979 Penal Code. Article 12 of the Penal Code of 1997 provides that “when the Chinese People's Republic was established, this Law shall apply to acts committed prior to the time when the law at that time did not consider them to be crimes; if the law at that time considers them to be crimes, it shall be pursued in accordance with the provisions of chapter IV, section 8, of the General Provisions of this Law, and criminal liability shall be incurred in accordance with the law at that time, but this Law shall apply if it is not deemed to be a crime or if the punishment is lighter. This Act shall remain in force until such time as a judgement has been rendered in force in accordance with the law of the time. " Article 12 of the Criminal Code of 1997 adds to article 6 of the Penal Code of 1979 provisions on the applicability of the new law to convicted persons, according to which the new law no longer applies retroactively to perpetrators whose acts have been adjudicated in force under the law of the time until the new law is in force. (iii) Our criminal justice interpretation is also guided by the old principle of subsidiarity In December 2001, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Regulations of the Supreme People's Court and the Supreme People's Procuratorate on the question of the temporal validity of the application of the interpretation of criminal justice [2001] 5, which clearly set out the principle of extenuating from the old and mitigating, as well as the principle of extenuating criminal justice in our country. According to the provisions of articles 3 and 4 of the judicial interpretation, the existing judicial interpretation was applied in respect of acts that occurred prior to the application of the new judicial interpretation; however, the new judicial interpretation was more favourable to the perpetrator and a new judicial interpretation was applied; and the new judicial interpretation was no longer applied retroactively in cases that had been settled prior to the application of the new judicial interpretation. II. RESTRICTIONS ON RESTRICTIONS ON THE APPLICATION OF RESTRICTIONS FOR RESTRICTIONS (i) Retroactivity of penalties for tax evasion On 28 February 2009, the Standing Committee of the National People's Congress issued Amendment (VII) to the Criminal Code of the People's Republic of China, amending article 210 of the Penal Code to read: “The taxpayer who fraudulently, conceals or fails to make a false tax declaration, evades the payment of more than 10 per cent of the taxable amount and shall be sentenced to imprisonment for a term not exceeding three years or to detention and a fine; the amount shall be imprisonment for a term not less than three years and not more than thirty per cent of the taxable amount, and the fine shall be imprisonment for a term not less than three years and not more than seven years. A person who withholds payment of an obligation by the means set out in the preceding paragraph shall be punished in accordance with the provisions of the preceding paragraph if he does not pay, or fails to pay, the taxes withheld or collected. In the case of repeated commission of the first two paragraphs, unprocessed amounts are calculated on the basis of cumulative amounts. In the first case, the tax authorities shall not be held criminally liable for the payment of tax dues and the payment of late payments, if they have been subject to administrative penalties, following a notice of recovery issued by the tax authorities in accordance with the law, unless they have received criminal penalties for evasion of payment of taxes within five years or have been subject to more than two administrative penalties imposed by the tax authorities.” Thus, the conduct of the taxpayer (which does not include the withholding of the obligor) falls within the constituent elements of the offence of tax evasion and is not subject to criminal liability if the following conditions are met: (1) The taxpayer is liable to administrative penalties for the payment of tax dues and late payments following a notice of recovery issued by the tax authorities in accordance with the law; (2) The taxpayer has not been criminally punished for tax evasion for a period of five years; (3) The taxpayer has not been subject to more than two administrative penalties by the tax authorities for tax evasion within five years. The above-mentioned provisions of article 201, paragraph 4, of the Penal Code, which are a statutory deterrent to punishment, clearly benefit the accused as compared with the provisions of the pre-amendment, and therefore have retroactive effect under article 12 of the Criminal Code. (ii) Rules for penalties for tax evasion that apply retroactively to the subject matter Under article 12 of the Criminal Code, the retroactive application of the new law requires two conditions, one that the perpetrator's conduct has not yet been adjudicated in force, i.e. that the application of the new law is earlier than the judgement in force, and the other that the new law does not consider the perpetrator's conduct to be a crime or a lesser penalty than the old law. 1. Convicted persons A convicted person is defined as the state in which the court has given a valid judgement in respect of the acts of the accused, and according to article 12 of the Criminal Code, the court has given a final judgement in respect of the perpetrator, i.e. the new law is enforced later than the judgement in respect of which it entered into force, and the new law is no longer retroactive. Thus, even if the perpetrator has met the conditions for the application of the penalty for obstruction provided for in amendment (vii) of the Criminal Code, the sentence cannot be commuted if the perpetrator has already been given a valid judgement by a court before 28 February 2009 constituting the offence of tax evasion. 2. Outstanding offences The so-called outstanding offender is the state in which the court has not yet given a valid judgement on the conduct of the accused, and the person who appealed or resisted after the first instance judgement was rendered is also a pending offender. In accordance with article 12 of the Criminal Code, the new law may be applied retroactively in cases where the court has not yet rendered a judgement in force against the perpetrator, i.e. before the entry into force of the new law. Thus, when the perpetrator has been sentenced by a court after 28 February 2009 for tax evasion, the court shall apply the provisions of amendment (vii) of the Criminal Code to rule on the perpetrator if the perpetrator meets the penalty for obstruction provided for in amendment (vii). 3. Inter-criminals The criminal law does not expressly provide for the application of the old principle of reciprocity in the case of an offender who is an indeterminate condition of the perpetrator's conduct and the date on which the new law was applied during the duration of the perpetrator's conduct. In December 1998, the Supreme People's Procuratorate regulated the issue. In accordance with the provisions of the Supreme People's Procuratorate on the approval of the question of how criminal law should be applied specifically in respect of continuing crimes, continuing crimes and other offences of the same kind that have crossed the date of application of the revised penal code (high-level review [1998] 6), the 1997 Penal Code should be applied to acts that began before 30 September 1997 and continued beyond 1 October 1997; however, if the 1997 Penal Code is lower than the threshold of incorporation provided for in the 1979 Penal Code or if the statutory penalty is heavier, it should be taken into account in the prosecution of a case that the 1979 Penal Code has a lighter sentence. Since document [1998] 6 of the Supreme Court addressed only how the perpetrator's conduct was to be dealt with in the context of the 1997 Criminal Code, with certain limitations, it established the basic principles for the application of the old and the new criminal law to cross-criminals. In other words, the provisions of the new Criminal Code should be applied to the criminalization of the perpetrator's conduct, which transcends those of the old and the new Criminal Code; however, if the statutory penalties provided for in the old Code are lighter, consideration should be given to the possibility of lightening them by reference to the provisions of the old Criminal Code. The fact that the offence of tax theft is a typical continuing offence and that its conduct is of a continuing nature does not arise after 28 February 2009, when the alleged tax evasion was terminated after 28 February 2009, means that the court's decision will necessarily be rendered after the application of the amendment (vii) to the Criminal Code, and that the court should apply directly the provisions of the amendment (vii) to the Criminal Code on the offence of tax evasion. III. Summary Amendment (vii) to the Penal Code increases the penalty for tax evasion, which is more favourable to the perpetrator than the previous provision, but which, according to the old principle of reciprocity in article 12 of the Penal Code, has the retroactive effect of applying the penalty in priority to persons who have not been convicted since 28 February 2009. If the court fails to apply the conditions applicable to the perpetrator's punishment for the offence of tax evasion, in violation of the old principle of subsidiarity, it is clearly a mistake in the applicable law and the person may actively defend his or her legitimate interests.

Note: This is a translated version of the Chinese news media article. A mature and nuanced reading is suggested.

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