Date of Award

2011

Degree Type

Thesis

Degree Name

Doctor of Juridical Science (S.J.D.)

First Advisor

Reuven S. Avi-Yonah

Second Advisor

Douglas A. Kahn

Third Advisor

Wei Xiong, Wuhan University

Abstract

A close examination of China's accession commitments reveals that effective economic reform and trade liberalization call for substantiations from a matching legal infrastructure reform. For example, taxpayers' rights protection should be viewed in terms of broader political and civil rights reform. Indeed, a number of the values featured in the WTO principles and the rule of law framework encourage China's further integration into both the global trade network and the international human rights regime. This is particularly evident in the Chinese tax law context. WTO principles and the rule of law requirements must be introduced and evaluated together in tax law reform proposals. WTO principles of transparency, uniform and impartial administration, judicial review match the instrumentalist's rule of law elements of consistency, generality, predictability, enforceability, stability and congruence, and the substantive rule of law framework's requirements of democracy, limited government, accountable administrative decision-making, and judicial independence.

China's accession to the WTO requires reform not only of China's substantive laws, but also of its institutional arrangements, to which the Chinese government has given inadequate consideration. Without real institutional reforms creating an independent and functional administrative framework or judiciary, any substantive economic reforms are likely to fall in nascent or vague - the tremendous economic success will be held back when ill-designed incentives are spoiled or exploited. The transparency requirement scattered in various provisions of the WTO Accession Agreement is an elevated burden for China. The uniform and impartial administration principle demands the removal of subtle trading barriers such as local protectionist practices. More importantly, independent judicial review of administrative actions challenges the status quo of slow judicial reform in China - requiring that China's courts meet WTO standards of independence, impartiality and non-arbitrary enforcement of judgments.

China's tax law system is administrative in nature but this characterization is complicated by legislative and judicial functions in the tax law. In this sense, the tax law reform benefits from as well as is circumvented by the post-WTO legal reform. The accession to WTO bounds China calling for transparency, consistency, simplicity and certainty in terms of tax legislations at both national and local levels. The hierarchical tax administration structure should not impede enforcement of tax laws. Uniform and impartial administration of tax regulations at various local levels should be improved to a level acceptable to guarantee wellgrounded tax administrative decisions and facilitate tax judicature independence. Given the growing awareness of taxpayers' rights, tax authorities should not dwell at the stereotype "monitor" position proclaiming obligation to pay tax, rather, a workable system of protections should be established and honored. Moreover, the tax treatment of the nonprofits sector as the third sector of the society should be formulated and enforced.

China's tax reform cannot be expected to fit any pre-designed, transplanted model. The project here is to build a versatile tax system, which takes opportunities to streamline, track, and propel economic development.

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