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财政法的基本原则

时间:2022-06-28 来源:未知 编辑:梦想论文 阅读:
The basic principles of Financial Law refer to the basic legal norms that embody the fundamental spirit of law, have general guiding significance and universal binding force on financial behavior. At least three factors should be taken into account in determining the basic principles of fiscal law. Firstly, it should conform to the connotation and characteristics of the basic principles of financial law, which is the necessary condition for the logical establishment of the basic principles of financial law; Secondly, we should look for the objective basis of the basic principles of the financial law from the characteristics of the objects to be adjusted by the financial law, and get rid of the subjective limitations of the exploration of the legal principles; Finally, we should fully consider the requirements of the basic principles of the Constitution and economic law in the legal system, and ensure the coordination of the internal system of the basic principles of the financial law. The above three aspects can be summarized as the logical basis, objective basis and legal basis for determining the basic principles of the financial law.
 
Based on the above considerations, we have defined fiscal democracy, fiscal legality, fiscal soundness and fiscal equality as the basic principles of fiscal law. Fiscal democracy focuses on the democratic foundation of finance, fiscal legalism focuses on the legal form of finance, fiscal soundness focuses on the safety and stability of finance, and fiscal equality focuses on the fairness and rationality of finance. Although these four basic principles are expressed independently, they are still intrinsically related to each other. Generally speaking, financial democracy is the basis of the whole financial law in modern society, and it occupies a core position in the financial law system. Fiscal legalism is a formal requirement of fiscal law, which aims to ensure the realization of democratic principles in the system. Fiscal soundness is a functional requirement of fiscal law. It aims to reduce fiscal risks and ensure that fiscal operation will not deviate from the goal of safety and stability. Fiscal egalitarianism is the value requirement of fiscal law, which ensures that the fiscal law formulated through democratic mechanisms and legal procedures is in line with justice. From the perspective of fiscal rule of law, fiscal legality is the formal element of fiscal rule of law, fiscal integrity is the functional goal of fiscal rule of law, fiscal equality is the value pursuit of fiscal rule of law, and fiscal democracy is the institutional guarantee for the organic combination of the above three. Therefore, it can be said that they are closely unified in the theory and practice of fiscal rule of law.
 
1. fiscal democracy
 
The basic meaning of democracy is not so much the rule of the majority as the decision-making power of individuals to participate in public affairs. What financial democracy requires is nothing more than giving ordinary citizens and enterprises the right to participate in financial affairs. From the legal point of view, fiscal democracy comes from the principle of national sovereignty generally recognized by modern countries. Since the state power comes from the authorization of the people, the people should have certain channels and ways to participate in the authorization process legally. As far as financial power is concerned, it is not a free thing independent of people's rights. On the contrary, it originates from and is subject to people's sovereignty. Because of this, it is up to the people to decide, through certain legal procedures, whether the government should spend, how it should spend, and the scale and types of fiscal revenue. The act of depriving the people of their financial decision-making power and then imposing their will on the people is fundamentally against the principle of people's sovereignty in the constitution. From the perspective of system, the representative system is an ideal model for modern society to implement the principle of people's sovereignty, which is manifested in the people's Congress System in China. Therefore, reforming the people's Congress System in China to ensure that people's representatives are subject to the will of voters and that people's representatives have the final decision-making power on major financial matters has become the primary content of fiscal democracy. Because of this, some foreign legislations and documents attach great importance to the principle of fiscal parliamentarism, which emphasizes the same requirements as fiscal democracy in ensuring people's financial participation rights. In addition, fiscal democracy also requires the people to enjoy effective supervision over financial affairs. Firstly, the decision-making process, implementation process and implementation effect of the government's financial behavior should be open and transparent; Secondly, it is required to guarantee the freedom of news media to interview financial affairs in accordance with the law, so that the whole process of financial behavior is under the supervision of the people; Finally, we should learn from the experience of advanced countries and set up special financial supervision organs in the operation mode of the people's Congress to make the audit of the people's Congress, the government audit and the social audit an organic whole. Of course, the purpose of supervision is to improve the efficiency of financial implementation, and ultimately to better perform the people's decision-making power on major financial affairs. Therefore, the primary content of financial democracy still rests on the people's financial decision-making power.

2. fiscal Legalism
 
Fiscal legalism is the concrete embodiment of fiscal democracy. It is based on fiscal democracy, and it is also a very important way to realize fiscal democracy. The so-called "law" here, in the formal sense, should only refer to the law enacted by the highest authority composed of people's representatives; The so-called financial "statutory" does not mean that all financial acts must be formulated with special laws, but only that financial acts must meet the elements of legitimacy and must be explicitly permitted by the law or specially authorized by the legislature. Only to the extent permitted by law can the government enjoy fiscal discretion. Fiscal legalism is generally manifested in: (1) fiscal power (interest) legalism. The content of financial power is very broad. It includes not only the financial legislative power of the legislature, but also the decision-making power, executive power and supervision power of the government and its subordinate departments on financial matters. It includes not only the financial power of the higher government to the lower government, but also the financial rights of the lower government to the higher government, and even the financial rights enjoyed by the local governments without administrative subordination. It includes not only the command right and prohibition right enjoyed by the government as a whole to the financial counterpart, but also the supervision right and request right enjoyed by the financial counterpart to the government according to law. The main purpose of the legislation of financial power (benefit) is to urge the government to act within the scope of statutory authorization and prevent the phenomenon of exceeding its power and abusing its power. At the same time, it is also to clarify the legal boundaries of interest distribution in financial relations and protect the legitimate rights and interests of financial counterparts. (2) Financial obligations are statutory. Like financial power (interest), the types of financial obligations are also very complex. In the field of financial law, power (benefit) and obligation do not necessarily form a one-to-one corresponding relationship, so it is still very necessary to clearly stipulate the financial obligations of each relative subject in the form of legislation. The financial subject only needs to bear the obligations clearly stipulated by the law, and matters beyond the scope of legal obligations can be rejected. (3) The financial procedure is statutory. The procedures that need to be directly stipulated by law mainly include financial legislative procedures, financial administrative procedures, financial supervision procedures and financial relief procedures. The purpose of financial procedure legislation is to ensure the effective operation of financial power within the established institutional framework, to ensure the transparency, impartiality and standardization of financial behavior, and to lay a good legal foundation for financial democracy. (4) Statutory financial responsibility. Fiscal responsibility is an external guarantee mechanism to urge the financial subject to exercise financial power legally and fulfill financial obligations effectively. Although it is not a normal state, it has a deep impact on the property, position and opportunities of the parties, so it must be based on the law. In addition to the administrative sanctions and punishments of administrative responsibility, the category of financial responsibility should also bear criminal responsibility if the circumstances are serious. In addition, with the deepening of the process of financial rule of law, political responsibilities such as taking the blame and resigning, economic responsibilities such as penalty interest, payment of liquidated damages and compulsory payment should also be introduced into the financial law in time to enhance its relievable elements and rigidity.
 
3. fiscal soundness
 
Fiscal soundness focuses on the safety and soundness of fiscal operation, and its core issue is whether government bonds can be used as the source of financial expenditure.
 
In the early stage of capitalism, fiscal soundness generally required annual fiscal balance and no deficit should be included in the budget. The national fiscal expenditure can only be derived from non tax income such as taxes and fees, and the legitimacy of public debt has been completely denied. After entering the monopoly period, affected by the economic crisis, the state had to intervene in the economy on a large scale. Due to the sharp increase in the amount of fiscal expenditure and the decline of traditional sources of income, fiscal deficits have become a common phenomenon in all countries. In order to make up for the fiscal deficit, the means of public debt began to be widely used and gradually legalized. Under this historical background, people began to have doubts about fiscal soundness. Under the circumstances that the issuance of government bonds has become inevitable, is it necessary to emphasize fiscal soundness? If so, how to measure the content of fiscal soundness? These problems have always been intertwined in people's minds and cannot be solved. In response to these problems, some people argue that the annual fiscal balance can not be achieved in fact, and that the fiscal balance should be based on a dynamic basis. If in an economic cycle, the deficit in the depression period can offset the surplus in the upsurge period, this is also a balance; Others argue that it is meaningless to consider the balance of finance itself. What needs to be considered should be the economic effect of finance. If finance can promote the healthy development of the economy, even if there is a fiscal deficit, it doesn't matter.

We believe that as the fiscal balance is broken, the scale of government bonds is expanding day by day, and the fiscal risk is also increasing. In this case, it is even more important to emphasize fiscal soundness to prevent the financial sector from breaking through its maximum bearing capacity and triggering a financial crisis. It should be said that although the way to achieve fiscal soundness can be changed, the concept of fiscal soundness will not be outdated at any time.
 
There is no doubt that fiscal balance is not only a way to achieve fiscal soundness, but also an ideal fiscal state. However, when the annual fiscal balance cannot be maintained, the focus of fiscal soundness should also be adjusted accordingly. Since public debt can not be avoided under modern economic conditions, we may as well affirm its legal existence. However, borrowing is, after all, an important factor that triggers financial risks. Therefore, the law should focus on restricting the issuing body, examination and approval procedures, issuing methods and limits, scope of use, repayment methods, debt management, etc. of government bonds, so as to maximize the positive effects of government bonds and reduce the financial risks of government bonds. When the scale and structure of government bonds have exceeded the risk warning line, the law should also set up emergency response measures, such as mandatory requirements to reduce the scale of fiscal expenditure, adjust the structure of fiscal expenditure, and so on.
 
4. fiscal egalitarianism
 
From the perspective of law, fiscal fairness includes the value pursuit of justice. From the perspective of system, it mainly reflects an equal treatment, which includes equal sacrifice of the obligors in terms of fiscal revenue, equal benefits of the obligees in terms of fiscal expenditure, and equal treatment of the same conditions in terms of fiscal procedures. Although the principle of fairness has not been universally affirmed in China's financial law, it should become a practical and effective legal principle because it is an extension of the constitutional principle of equality in the field of financial law.
 
Under the social background of the increasing urban-rural gap, regional gap and the gap between the rich and the poor in China, the establishment and effective play of fiscal egalitarianism will help to control social contradictions within people's psychological tolerance, create an equal and harmonious competitive environment, and help to ensure the legal protection of minimum human rights. Therefore, it has very important practical significance.
 
The fairness pursued by the financial law includes both the fairness of the starting point and the fairness of the process. It can be expressed as an equal treatment in both substantive law and procedural law. Because of this, the requirements in different fields of financial law will be different. For example: (1) in terms of Taxation, fairness is mainly reflected in the ability to tax, that is, the tax system is designed according to the tax burden capacity of taxpayers. People with high incomes need to pay more taxes; People with less income have a lighter tax burden. (2) In terms of fee collection, fairness is mainly reflected in the relevance of benefits. For example, fees should reflect a kind of direct benefit and cannot be paid by individuals who do not enjoy public services; For another example, the construction fund shall reasonably determine the scope of the obligors according to the benefits of the project. People with different benefit levels should pay different fees. (3) In terms of inter regional fiscal relations, the fiscal law should ensure a minimum fiscal balance. For example, in addition to the central government increasing the financial supply capacity of areas with financial difficulties through transfer payments, it can also design a model of horizontal fiscal balance among regions, in which rich regions provide financial assistance to poor regions according to certain standards. (4) In terms of financial relations among social strata, every group should be guaranteed equal opportunities and treatment without institutional discrimination. For example, the current gap between urban and rural areas in China is largely related to the imbalance of fiscal expenditure. Therefore, certain fiscal legal measures should be adopted to reverse the adjustment in order to promote equal opportunities between urban and rural areas. (5) In terms of the standard of financial expenditure, except for the objective difficulties that are necessary or insurmountable for official business, the same situation should be handled in the same way. It cannot be considered that the differences between receptors are too large due to human reasons. Because of this, the inequality between the rich and the poor in the administrative expenses between departments in the process of budgeting must be changed. (6) In terms of the protection of minimum human rights, finance should guarantee every citizen's basic human rights, such as the right to life and the right to education, and provide assistance and relief to the weak in society. For example, the implementation scope of the minimum living security system is not limited to cities, but also should be widely implemented in rural areas. If the finance at the corresponding level lacks sufficient payment capacity, the finance at a higher level shall supplement it in full through transfer payment.
 
In the system of fiscal law, in addition to the basic principles, there are also some principles that are only binding in one aspect, such as the principle of openness and unity in the budget law, the principle of tax according to capacity in the tax law, the principle of fiscal autonomy in dealing with the relationship between the central and local governments, etc. These principles are either the application of basic principles in specific fields, or they are summarized and refined from the legal norms in this field, but they undoubtedly play an important guiding role and normative effect in their respective scopes. For the contents of these principles, please refer to the introduction of relevant chapters.
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