| Abstract: | 在我國，除了民刑事訴訟，行政救濟上亦有不利益變更禁止概念之適用，實務上習慣以「不利益變更禁止原則」稱之，而這樣的一個原則，在行政救濟一環之稅務訴願也被納入思考，意指訴願審理機關在訴願人表示不服範圍內，不得為更不利益之變更或處分。早期實務在訴願法未明文下，將不利益變更禁止視為行政救濟之法理，適用於稅務訴願程序，並及於復查程序。於民國87年，訴願法修法時更明文納入不利益變更禁止規定。儘管不利益變更禁止在法律已有明文，但此一禁止規定於學理上產生極大爭議，否定見解認為稅務訴願採取不利益變更禁止，將犧牲依法課徵、依法行政等要求，而造成租稅不公，因此多主張不利益變更禁止之規定不具正當性。是以，不利益變更禁止之法理依據為何，即有探究必要。本文首先以稅務訴願程序作為範圍，探討不利益變更禁止概念內涵與我國實務見解，以及觀察日本訴願法制上不利益變更禁止運作情形，藉以與我國法制進行比較，釐清殊異所在。其次討論我國肯認及否認不利益變更禁止之法理依據，釐清現行規範是否具有正當性。而後就稅額不足之補徵程序進行比較法觀察，並在國際上確立納稅者權利而整備租稅程序的觀點下，探討比較法規定是否得供我國參酌。結論上，本文認為透過比較法觀察，稅務訴願採取不利益變更禁止之法理依據會因為對於訴願目的認知的不同而有所差異。以我國實務對於訴願程序係以權利保障作為訴願權能概念內涵之立場，足徵權利保護於訴願之重要性，因而日本法以訴願目的主要在於保障人民權益而規定不利益變更禁止的比較法視野，採取不利益變更禁止未必不適宜。但基於依法課稅、租稅公平的觀點，即便於訴願採取不利益變更禁止之日本法，於訴願後對於稅額之不足仍透過更正程序補徵，且在國際上確立納稅者權利而整備租稅程序的觀點下，本文藉由比較模範納稅者權利憲章以及日本相關補徵程序等規定，嘗試在納稅者權利保障下就不利益變更禁止，對我國稅法未來修法方向提出建議。
In Taiwan, the Principle of Disadvantage Prohibition is applied not only to the civil or criminal procedure but to the administrative remedy procedure. Therefore, this principle, meaning that the agency with jurisdiction of administrative appeal shall not make less favorable modification or decision for the appellant than that was sustained in the scope of the objection which the administrative appellant expressed, also functions under administrative appeal related to taxation affairs.Without provisions in the Administrative Appeal Act, this prohibition, which is derived from the Judicial Precedents and interpretations in Taiwan’s early legal practice, is regarded as a jurisprudence of administrative remedy and applies to not only administrative appeal related to taxation affairs but recheck in the Tax Collection Act. This prohibition still has caused fierce controversy among the administrative law academic field in Taiwan ever since article 81 was established in the Administrative Appeal Act in 1998. On the basis of the principle of taxation by law, studies based on German Tax law criticize that article 81 brings tax unfairness and hold that the prohibition is neither a jurisprudence of administrative remedy nor a legal principle of administration remedy and therefore unjustified. Due to the fierce controversy, it is highly necessary to inspect the basis of legal theory of this prohibition.This study, within the scope of the administrative appeal related to taxation affairs, firstly intends to explore the meaning of this prohibition, the judicial decisions as well as the differences between Taiwan and Japan legal practice and theory. After observing and organizing the opinions for and against this prohibition, this study examines the legitimacy of this prohibition, and then compares the provisions in Taiwan and Japan whereby either the Tax Administration correct deficiencies or a Taxpayer may come forward voluntarily to a Tax Officer to correct past tax filings and deficiencies with the international trend towards establishing taxpayer rights.This study concludes that the legal basis of this prohibition differs from the main purpose of the administrative appeal related to taxation affairs. Through an analysis of the Japan experiences and the reflection on the judicial decisions, the main purpose of the administrative appeal related to taxation affairs falling into protecting the rights and interest of the people justifies this prohibition. In Taiwan, it represents the significance of protecting the rights and interest of the people under administrative appeal related to taxation affairs that the judicial decisions comprehend the legal concept Klagebefugnis mainly protecting the rights and interest of the people, instead of ensuring that all administrative acts are carried out based on the principle of administration by law. Hence the prohibition in Taiwan is legitimate from the perspective of the main purpose of the administrative appeal related to taxation affairs falling into protecting the rights and interest of the people. Japan’s legal practice and judicial decisions, which result from the main purpose of the administrative appeal related to taxation affairs falling into protecting the rights and interest of the people, may also help us to propose some suggestions on the reform and amendment of the taxation system in Taiwanese legal system. Howerer, all administrative acts, including collection of taxes, should be carried out in pursuance of a fair, open and democratic process based on the principle of administration by law. In Japan, the tax deficiencies get corrected after the administrative appeal, which this prohibition is applied to. With the international trend towards establishing taxpayer rights, the articles of Model Taxpayer Charter developed by three tax professional bodies in the the world, the Conf?d?ration Fiscale Europ?enne (CFE), the Asia-Oceania Tax Consultants? Association (AOTCA) as well as the Society of Trust and Estate Practitioners (STEP), and the provisions of taxation laws in Japan may help us to propose some suggestions on the reform and amendment of the taxation system in Taiwanese legal system. |
