中国台湾地区大法官“释宪”实践中的量能课税原则

Abstract

When the Grand Justices review the tax case in China Taiwan Region,they developed the tax legalism through the specific interpretation of the "Constitution" Article 19 , for the protection of human rights in essence, the Grand Justices again put the ability to pay principle as the "constitutional" review standard. In the "constitutional interpretation"practice, Justice Interpretation word No. 318, No. 438, No.473, No. 508, No. 565, No. 597, No. 607, No. 635, No. 688 involved the ability to pay principle ,which may be bounded by the Justice Interpretation word No. 565, after the Interpretation word No. 565, Justice pay more attention to the review of tax fairness essentially, and use the "Constitution" on the principle of equality, property rights and survival rights, the principle of proportionality for tax review. However, despite the Grand Justices have applied the ability to pay principle, the text of "Constitution" has not been clearly defined it, we can explain its "constitutional" basis through the "Constitution" Article 7 of the principle of equality, Article 15 of property rights and survival rights, Article 23 of the proportionality principle. The Grand Justices explained the ability to pay principle in the Interpretation word No. 597 expressly, so that the ability to pay principle has the "Constitution" effectiveness and has a general binding. About the application of the ability to pay principle, we find that the application of the ability to pay principle is still inseparable from the tax legalism, the tax legalism often will first be used on the relevant provisions of formality examination; and in most cases, the Grand Justices applied the tax legalism to reflect the form of the ability to pay principle; and the ability to pay principle tend to make comprehensive use the requirements of "constitution" on the principle of equality, property rights and survival rights as well as the principle of proportionality, so that the review structure of the ability to pay principle is more complete; and the ability to pay principle can be subject to the tax collection technology and administrative efficiency, in addition, tax incentives constitute the exception to the ability to pay principle.