Recently, the person in charge of a state-owned enterprise was sentenced to 15 years in prison for environmental invoices. The case of a retrial and eventually acquittal came into public view and triggered widespread discussion. The crime of falsely issuing special value-added tax invoices must comply with the principle of consistency between subjectivity and objectivity, that is, objectively, there must be the act of falsely issuing special invoices, and subjectively, there must also be the intention to defraud tax deductions, and actually cause losses to the country's value-added tax. . If there is no subjective purpose of defrauding tax and no objective result of tax loss, it does not constitute a crime of false disclosure. However, over the years, there have been ongoing disputes over whether the crime of false disclosure is an act crime, a purpose crime, or a result crime, resulting in the phenomenon of different sentences for the same case. The acquittal in this case prompted the public to take another look at the crime of false pretense. In view of this, this article will use this case as a starting point to sort out the policies, opinions and judicial cases related to the crime of false accusation, provide ideas for accurately identifying the crime of false disclosure, and properly balance the relationship between combating the crime of false disclosure and protecting human rights.

I. Case introduction: The person in charge of a state-owned enterprise was not guilty of issuing environmental invoices for inflated transactions

(I) Basic case facts

Wang Guituan is the legal representative of Zheshang Coal Company and the actual controller of Jinan State Railway Energy Company. From October 2010 to October 2011, Wang Guituan instructed Jinan State Railway Energy Company to buy coal at a high price and then sell it to Zheshang Coal Company at a low price, causing the State Railway Energy Company to suffer huge losses.

In response to the superior's annual audit of Zheshang Coal Company and the cover-up of Jinan State Railway Energy Company's losses, Wang Guituan was introduced by someone and contacted a company in Shandong, and arranged for Zheshang Coal Company and Jinan State Railway Energy Company to cooperate without real trade. Signed a coal purchase and sales contract with a company in Shandong, and conducted bank transfers between the three companies, forming a bank flow of 108.88 million yuan, and required Jinan State Railway Energy Company to be Zheshang Coal Company, Zheshang Coal Company to be a company in Shandong, and a certain company in Shandong The company falsely issued special value-added tax invoices for Jinan State Railway Energy Company.

(II) Court’s view

The court of first instance held that in order to cope with the annual audit of the superior unit, Wang Guituan required Zheshang Coal Company, Jinan State Railway Company, and a company in Shandong to sign a coal sales contract with no source of goods and no specific user unit. In the absence of real trade, the three companies The company only conducted bank fund transfers and repeatedly issued special VAT invoices for huge amounts, which violated the state's management system for special VAT invoices. It constituted the crime of falsely issuing special VAT invoices and was sentenced to fifteen years in prison.

The court of second instance held that Wang Guituan arranged for three companies to sign false coal sales contracts and repeatedly issued special VAT invoices in order to cover up the fact that he incurred huge losses during his control of Jinan State Railway Energy Company, which constituted the crime of falsely issuing special VAT invoices. , should be punished in accordance with the law and the original judgment should be upheld.

The retrial court held that Wang Guituan arranged and planned three companies to carry out bank fund transfers and issue special value-added tax invoices in the absence of real transactions. The purpose was subjectively to convert old accounts into new accounts and cope with the annual audit of superior units. There was no fraud. State tax purposes. Objectively speaking, the three companies issued special value-added tax invoices on a cyclic basis without any real purchase and sale of goods, and all of them have made input tax deductions. They have made tax declarations to the competent tax authorities in accordance with regulations. The entire process involves open-loop deductions and closed-loop deductions. The deduction did not result in the loss of state tax revenue. Therefore, the first-instance judgment and the second-instance ruling were revoked, and Wang Guituan was acquitted.

(III) Legal analysis

Judging from the judgments of the first and second instance courts, they both believed that the legal interest protected by the crime of false issuance of special value-added tax invoices is the management system of special value-added tax invoices. Regardless of the subjective purpose and objective results of the perpetrator, as long as the crime of false issuance of special value-added tax invoices is carried out Any act will infringe upon the protected legal rights and constitute this crime. The retrial court held that to constitute this crime requires the subjective purpose of defrauding the state’s tax revenue and causing losses to the state’s tax revenue.

The reason why the retrial court has different views from the first and second instance courts requires a re-examination of the historical evolution of the crime of false pretense.

II. Review of the controversy: Taking the millennium as the boundary, the crime of false pretence has evolved from a crime of conduct to a crime of purpose (crime of result)

(I) 1994-1997: Virtual opening does not require subjective intention and objective results

In 1994, my country implemented tax reform and established a value-added tax system. Due to the low level of invoice management at that time, a large number of false issuances of special value-added tax invoices occurred, disrupting the national tax system and causing serious losses in tax revenue. In 1995, the Standing Committee of the National People's Congress established the invoice crime group. The 1997 Criminal Law basically absorbed the content of the decision of the Standing Committee of the National People's Congress in 1995, and Article 205 of the Criminal Law came into being.

In order to vigorously crack down on the crime of false disclosure, within a certain period of time, as long as the perpetrator commits the act of false disclosure, this crime will be constituted. Especially in 1997, the Research Office of the Supreme People's Court issued the "Concerning tax fraud or tax evasion intentional, and no tax evasion caused by the state". The Reply on How to Qualify the False Issuance of Special Value-Added Tax Invoices for Tax Loss" clearly clarifies that regardless of whether there is intentional tax fraud or tax losses, as long as there is a false issuance of special value-added tax invoices, this crime will be constituted, further prompting judicial practice to identify this crime as Behavioral offender. Relevant policies are summarized as follows:

(II) Since 2001: The Supreme People’s Court and the People’s Procuratorate have repeatedly required that false disclosure must have subjective intention and objective results.

With the development of society and the improvement of the level of national tax collection and administration, legislation and judicial practice have also developed accordingly. The collection and administration logic of value-added tax and chain tax is increasingly understood by the theoretical and practical circles. Excessive crackdown on this crime is not conducive to the protection of human rights. , causing an imbalance between legal interests and human rights. At the same time, in social practice, there are also behaviors such as inflating performance, exaggerating strength, obtaining bank loans, implementing circumvention, and issuance of value-added tax invoices. Such behaviors are very different from the harmfulness of violent inflating. If the crime of false pretense is determined based on the idea of ​​a behavioral crime, it will lead to improper punishment and violate the principle of commensurate punishment with crime.

Therefore, since the beginning of 2001, the Supreme People's Court has repeatedly reiterated in its replies and symposiums that "subjectively, false taxation does not have the purpose of tax evasion and objectively does not actually cause national tax losses, and does not constitute false taxation." "It is a crime to issue value-added special invoices". In 2020, the Supreme People's Procuratorate's "Opinions on Giving Full Play to Procuratorial Functions and Services to Guarantee the "Six Stabilities" and "Six Guarantees" also clarified that "for enterprises with actual production and business activities for non-tax fraud purposes such as inflating performance, financing, and loans, etc. The act of falsely issuing special VAT invoices that does not result in tax losses will not be treated as a crime of falsely issuing special VAT invoices." It can be observed in the following responses, symposiums and opinions related to the crime of falsely issuing special VAT invoices.

It can be seen that in the context of today's era, the legislative department and the highest judicial authority's thinking in determining the crime of false pretense has undergone fundamental changes. Therefore, it is no longer appropriate to identify this crime in terms of behavioral crimes.

(III) Judicial adjudication: four innocent cases of falsely issuing invoices

In judicial practice, there are also judgments and even typical cases of the Supreme Court that adopt the idea of "whether the perpetrator subjectively has the purpose of tax fraud and objectively causes the loss of national tax revenue" to deal with the crime of false pretense, and properly balance the crackdown. The relationship between crime and the protection of human rights. The following are relevant judicial cases.

First, Case 1: A typical case of the Supreme Court protecting private entrepreneurs: Zhang Mouqiang’s false acquittal

This case is a batch of typical cases released by the Supreme People's Court to protect property rights and the legitimate rights and interests of entrepreneurs, but the original judgment has not been found. The author has seen an article criticizing the case. The author of this article believes that "Zhang Mouqiang used the method of paying the handling fee for issuing tickets on his behalf and evaded 3% of 3.81 million yuan (4457701.36/1.17=381), totaling 114,300 yuan." , causing tax revenue losses, and is harmful." However, the relevant person in charge of the Supreme People's Court pointed out that this case will guide courts across the country in judicial trials to treat irregularities in the development of private enterprises from a developmental perspective in accordance with the principles of statutory punishment and non-discrimination. question. Therefore, the author believes that in the handling of this case, the evidence in the case cannot rule out the reasonable suspicion that Zhang Mouqiang evaded taxes by paying handling fees. Furthermore, the court adhered to the principle of acquittal and presumed that Zhang Mouqiang was affiliated with the business method. Zhang Mouqiang was found not guilty.

Second, Case 2: The procuratorate filed a protest on the grounds of criminal conduct but was rejected by the court

The most noteworthy thing about this case is that the procuratorate made a clear protest to the court from the perspective of a criminal. It held that the purpose of defrauding the state's tax revenue and causing state tax losses were not constitutive elements of the crime of false disclosure, which was rejected by the second instance court. The court of second instance clearly pointed out that the determination of the crime of false disclosure needs to be based on the legislative purpose and system, and that the purpose of this crime is to protect the country’s tax interests. When determining a crime, it is advisable to adhere to the principle of consistency between subjectivity and objectivity, and classify all formal acts of false pretense as false pretense crimes, regardless of the subjective purpose, and belong to objective imputation.

Third, Case 3: Invoicing through affiliated operations does not constitute false invoicing

In this case, the approach of the second instance court is worthy of learning and reference by courts across the country. The judicial authority sent a letter to the tax authorities to explore the origin of the tax system and believed that Hengrui Company, as a taxpayer, and Zhang Yongjun's issuance of special value-added tax invoices through Pu Renhong Company and others met the three conditions in Announcement No. 39 of 2014. At the same time, reference was made to the 2015 reply document of the Research Office of the Supreme People's Court soliciting opinions on "How to determine the nature of conducting business activities in the name of "affiliated" relevant companies and allowing the relevant companies to falsely issue special value-added tax invoices for oneself", and clarified Expressed the view that the 1996 Judicial Interpretation should not be applied.

Fourth, Case 4: Truthful opening does not constitute false opening

If the perpetrator does not borrow the qualifications of others, even if there is no affiliation, but operates in the name of others and issues invoices truthfully, he should not be mechanically punished as a false invoicing crime. This is the view of the retrial court in Case 4: Agency Invoice Issuance in the Transportation Industry. The court also believed that the reply letter of the Supreme Court in 2015 provided further guidance and clarification on the crime of false issuance. Simply letting other companies issue invoices on their behalf constituted the crime of false issuance, which violated the principles of consistency between subjectivity and objectivity and consistency between guilt and punishment. .

(IV) Summary

A comprehensive review of the above policies and typical judicial decisions shows that currently, the Supreme People's Court and the Supreme People's Procuratorate take the lead, and judicial agencies at all levels have gradually reached a consensus when handling cases of false issuance, that is: the crime of falsely issuing special VAT invoices is not a crime of conduct and is subjective. Behavior that does not have the purpose of defrauding taxes and does not objectively cause losses to the state’s VAT does not constitute the crime of falsely issuing special VAT invoices. Therefore, the author can say with certainty: the crime of false pretense is a "purpose crime" + "result crime".

III. Defense Points: Ideas for Convicting the Special Crime of Falsifying VAT

Different industries have different industry characteristics. For example, there is a phenomenon of over-allocation of mining in the coal industry; the scrap materials industry, Internet platforms, etc. enjoy preferential government fiscal return policies; and there is a business model without transportation vehicles in the transportation industry. Therefore, in addition to adopting the general idea of ​​defining false crimes and non-conduct crimes, it can be demonstrated based on the characteristics of the industry.

(I) Defense of subjective elements: no purpose of defrauding taxes

The aforementioned case of the person in charge of a state-owned enterprise issuing environmental invoices for inflated transactions was for the subjective purpose of coping with superior audits and concealing the fact of the company's huge losses, and did not have the purpose of defrauding taxes. At the same time, any act of falsely issuing special VAT invoices in order to falsely increase turnover, expand sales revenue, exaggerate the economic strength of a company, falsely increase corporate assets, etc., but do not use the special VAT invoices to deduct taxes, should not be deemed as false issuance. Crime of special value-added tax invoice. Therefore, we can combine the characteristics of the case, analyze the business operation model, explore the purpose of the perpetrator, and conclude that the perpetrator does not subjectively have the purpose of defrauding the national value-added tax, and does not meet the subjective requirements for the crime of falsely issuing special value-added tax invoices.

(II) Defense against objective result requirement: no loss of state tax revenue

From the principles and calculation methods of value-added tax, it is shown that the perpetrator did not cause any loss of state tax. According to the relevant provisions of value-added tax, if a sale occurs, value-added tax liability will arise. Since value-added tax is a chain tax, the seller in each link needs to fully confirm the output tax on the sales of this link. This will cause the output tax recognized by the seller in each link to include the sales tax in the previous link. The confirmed output tax amount creates the problem of double taxation. Therefore, the tax law gives VAT taxpayers the right to deduct, which allows the seller to deduct the output tax that the seller has confirmed in the previous step while confirming the output tax in this link.

Even if there are affiliated operations, truthful issuance, recurring invoicing, etc., if the actor can truthfully declare and pay the VAT on time after issuing the invoice, and the invoice is used to deduct the VAT input tax, it will not cause any problems in its own process. Loss of any tax. In addition, it should be noted that when calculating whether there is a national tax loss, the government financial refund received will be excluded from the tax loss.

(III) Harmful defense: The perpetrator does not pose serious social harm

Although the death penalty has been removed from this crime, the maximum penalty for committing this crime is life imprisonment. According to the criminal law principle of "criminal responsibility and punishment appropriate", the crime of false disclosure should have serious social harm. If the perpetrator does not subjectively have the purpose of defrauding the state of value-added tax, and his behavior does not cause any loss of value-added tax, and if there is only false behavior and no serious social harm is caused, it can only be regulated by administrative law. It should not be elevated to a crime.

In practice, if an entity enterprise engages in tax non-compliance during its operations and subjectively obtains falsely issued invoices in good faith, or although it obtains falsely issued invoices, the enterprise can actively recover tax losses and carry out compliance rectification. . In order to save enterprises, protect employee employment and local economic development, procuratorates and courts should actively guide enterprises to carry out criminal compliance and obtain the results of non-prosecution, exemption from criminal penalties or suspended sentences.