Since the Criminal Law Amendment (VII) added the administrative predicate of tax evasion, the issue of the convergence of execution and punishment of tax evasion has been a hot topic of discussion in practice.2023 On October 10, the Supreme Court issued a typical case involving the protection of the property rights of private enterprises and the legitimate rights and interests of entrepreneurs in retrial, and the fifth case of the acquittal of Meng Mou in a retrial of tax evasion, which provided a more clear interpretation of the provisions of the fourth paragraph of the crime of tax evasion, while the defendant initiated the retrial procedure through the form of protest by the procuratorate, which demonstrated the importance of safeguarding the defendant's right to judicial remedy. At the same time, this case was initiated by the defendant through the form of the Procuratorate's protest, which plays a good role as a model for safeguarding the defendant's right to judicial remedies. This paper intends to start from the case, the administrative preliminaries of tax evasion and the relevant provisions of the initiation of retrial procedures.

I. Typical case: the head of the enterprise did not receive the tax documents due to detention, and was sentenced to tax evasion at the first trial, and was acquitted at the retrial

(I) Basic facts of the case

The defendant Meng is the actual person in charge of company A, in October 2011 for suspected of committing the crime of illegal business operation by the public security organs for investigation and detention. 2012 July, the public security organs of company A in 2009 to 2010 during the sales of housing without tax declaration, tax evasion clues transferred to the tax authorities. In October of the same year, the tax authorities made a "tax administrative processing decision", ordered Company A to make up for the tax evasion of more than 220,000 yuan within fifteen days and late payment fees, and sent to the staff of Company A on the following day. As Meng was in the state of detention, she was not aware of the tax processing decision, and Company A did not fulfill the tax processing decision, therefore, the tax authority of Company A referred the case to the public security authorities in November 2012. In November 2012, the public security authorities opened a case for investigation of Company A's tax evasion. One week later, the procuratorate filed an indictment with Court A for tax evasion committed by Meng.

(II) Judgment Result

The court of first instance held that Meng constituted the crime of tax evasion and sentenced Meng to two years' imprisonment, three years' probation and a fine.

Meng did not file an appeal, and the judgment of the first instance took effect.

After the judgment took effect, the Municipal People's Procuratorate filed a protest against acquittal, and the Intermediate People's Court then directed the local B People's Court to conduct an off-site retrial.

People's Court B issued a retrial judgment in December 2021, acquitting Meng. The court held that "According to Article 201 of the Criminal Law, if a taxpayer evades payment of tax and, after the tax authorities have issued a notice of recovery in accordance with the law, pays the tax due, pays the late fee, and has already been subject to administrative penalties, he shall not be held criminally liable. In this case, Meng did not receive and did not know the tax administrative decision because he was detained, and his failure to pay the tax within the stipulated period was not due to his own reasons, and the original trial sentenced him to the crime of tax evasion, and the application of the law was wrong. The procuratorate's protest was upheld, and the retrial resulted in a change of sentence, acquitting Meng."

After an appeal hearing, the Intermediate People's Court 2022 issued a decision of second instance in March, which was upheld.

(III) Typical Significance

This case is a typical case issued by the Supreme People's Court involving the protection of property rights and legitimate rights and interests of entrepreneurs in private enterprises for retrial. In this case, the court of retrial acquitted Meng, who failed to make timely payment of taxes and late fees due to his ignorance of the decision on the tax treatment, correcting the error of the original judgment and upholding the authority of the judiciary; at the same time, the higher-level People's Procuratorate found that there were indeed errors in the effective judgments rendered by the people's courts of the lower levels and initiated the trial supervision procedure by filing a protest against the judgment. At the same time, the higher-level people's procuratorate found that the effective judgment made by the lower-level people's court was indeed wrong, and initiated the trial supervision procedure by filing a protest, and made a fair judgment with the joint efforts of the procuratorate and the court to safeguard the legitimate rights and interests of private entrepreneurs.

II. Tax evasion cases should be administratively prior to the tax authorities in accordance with the law issued a notice of recovery after the taxpayer to make up the payment, will not be held criminally liable

(I) tax evasion cases should be processed by tax authorities first

Paragraph 4 of Article 210 of the Criminal Law stipulates that "taxpayers shall not be held criminally liable for evading payment of taxes, and shall not be held criminally liable for paying the tax due after the tax authorities have issued a notice of recovery according to law, and for paying the late payment fee, and have been subjected to administrative penalties." Therefore, in practice, it is generally believed that tax evasion cases should be dealt with by the tax authorities first, such as in this case, "the public security organs of Company A in 2009 to 2010 during the period of housing sales did not make tax declarations, evading the payment of tax clues to the tax authorities", after the tax authorities, the parties still did not fulfill the obligation to pay back the tax, and only then will the The case was again transferred to the public security authorities.

For this provision, some regional judicial organs have understanding bias, that the public security organs can directly investigate the case, such as "Wang Mou tax evasion crime of the first instance of the criminal judgment" contains: "criminal procedure law norms do not provide for tax-related criminal cases shall be the administrative behavior of the tax authorities for the investigation of the antecedent elements, the public security organs of the self-discovery of the crime clues for investigation The investigation of criminal clues discovered by the public security organs on their own belongs to the exercise of investigative power in accordance with the law".

From the perspective of criminal law theory, combined with the provisions of Paragraph 4 of Article 201 of the Criminal Law, (tax evasion) shall be firstly handled by the tax authorities in accordance with the law, and then according to whether the perpetrator is to make up for the tax due, pay the late payment penalty, accept the administrative penalty, and decide whether to pursue the criminal responsibility, i.e., the case of tax evasion is a tax administrative precedent case. In practice, many judgments recognized the above viewpoints, such as the case of Li Mou's tax evasion retrial, which the retrial court held that: "The revised Criminal Law of the People's Republic of China, Article 201, paragraph 4, stipulates that 'the first paragraph of the act, after the tax authorities have issued a notice of recovery in accordance with the law, to make up for the tax payable, pay the late payment penalty, and have been subject to administrative penalties, shall not be held criminally responsible. administrative penalties, shall not be held criminally liable'. The purpose of this amendment to the Criminal Law is, on the one hand, to protect the order of tax collection and administration and to facilitate the recovery of tax by the tax authorities, and, on the other hand, to give the taxpayers the opportunity to rectify their tax payment behavior, which is important for the maintenance of the normal operation and development of the enterprises. According to the relevant provisions of the Law of the People's Republic of China on Administration of Tax Collection, the tax department shall, after discovering that Company X may have tax evasion, firstly carry out a tax inspection by the tax inspection department, and then impose tax recovery or administrative penalties on the taxpayers according to the conclusion of the inspection, and then transfer the taxpayers suspected of having committed criminal offenses to the public security organs for investigation. This case was not issued by the tax authorities in accordance with the law, that is, directly transferred to the public security organs for investigation and to pursue the criminal liability of Company X and Li, depriving the taxpayers of the right to rectify their tax payment behavior, and the direct intervention of the investigating authorities without going through the administrative disposal procedure, which is not in line with the spirit of the revised legislation of the Criminal Law." Therefore, the court changed the sentence to acquittal on the grounds that "Company X and Li should be subject to the provisions of Article 201(4) of the Criminal Law and should not be held criminally liable".

(II) Case: Since the tax authorities failed to serve the notice of recovery in accordance with the law, the party concerned failed to pay the tax within the prescribed period for reasons other than its own, and was not held criminally liable.

According to Paragraph 4 of Article 201 of the Criminal Law, if the party concerned fulfills the payment obligation after receiving the notice of recovery issued by the tax authority, criminal liability shall not be pursued. However, in practice, some courts have recognized that if there are reasons not attributable to the party concerned for not fulfilling the obligation to pay, criminal liability may also not be pursued.

For example, in this case, the court of review held that the tax authorities served the documents to the staff of Company A, but Meng did not receive and did not know the tax administrative processing decision because he was detained, therefore, his failure to pay the tax within the stipulated time limit was not due to his own reasons but due to the failure of the tax authorities to serve the documents in accordance with the law, and therefore, the court of review did not hold the person concerned criminally liable for the crime of tax evasion.

From the perspective of service procedure, according to the third paragraph of Article 101 of the Implementing Rules of the Tax Collection and Administration Law, "If the person to be served is a legal person or other organization, it shall be signed for by the legal representative of the legal person, the main person in charge of the other organization, or the person in charge of finance of the legal person or organization, or the person in charge of the receipt of the document. If the person to be served has an agent, it can be sent to his agent to sign." It can be seen that the laws and regulations for the scope of the tax instrument signatory has a clear limit to the legal person to serve the instrument should be sent to the legal representative of the legal person, the person in charge of finance or agent, or the legal person responsible for the receipt of the person to sign for it, it is important to note that the general staff of the enterprise and other legal signatory is not within the scope of the person. In this case, the tax authorities served the processing decision letter to the staff of Company A, which obviously violated the above provisions and did not meet the requirement of "the tax authorities serve the recovery notice according to law".

(III) Since the party concerned cannot control the enterprise to fulfill the obligation to pay back the tax, it cannot be responsible for the refusal to fulfill the obligation to recover the tax, which does not constitute the crime of tax evasion.

In addition to the above mentioned error in the delivery of tax documents, which constitutes "the party's failure to pay the tax within the prescribed period is not due to its own reasons", Huatax has previously published the article "Analysis of Actual Cases: Can Executives of Enterprises be Exempted from Criminal Penalties if the Enterprises are Founded to Have Committed the Offense of Tax Evasion? The article disclosed a case in which the person concerned was found guilty of tax evasion for not having the right to control the enterprise's payment of back taxes due to the fact that he had left his office, and the court of second instance acquitted him of the crime. In that case, the court of first instance sentenced Zhang, the person in charge of the unit, to tax evasion, but the court of second instance held that the person in charge had stepped down from his office before the tax authorities issued the tax instrument, and therefore could not fulfill the obligation of recovering the tax of the unit, so the taxpayer did not satisfy the requirement of controlling the enterprise and refusing to fulfill the obligation of recovering the tax, and should not be sentenced for tax evasion, and thus ruled that "Zhang lost the right to manage the enterprise and no longer acted as the Zhang lost the right to manage the enterprise and no longer acted as the responsible supervisor of the enterprise, and could not be held responsible for the refusal to fulfill the obligation to recover the tax, and therefore did not constitute the crime of tax evasion."

III. Application for retrial if not satisfied after the entry into force of the judgment of first instance

(I) The defendant has the right to appeal to the procuratorate to initiate a retrial

In this case, the initiation of retrial proceedings was initiated through a protest filed by a higher-level procuratorate with the people's court of the same level as its own. According to Article 252 of the Criminal Procedure Law, "The parties concerned, their legal representatives and close relatives may appeal to the people's court or the people's procuratorate against a judgment or ruling that has become legally effective, but the execution of the judgment or ruling may not be stayed." The parties concerned have the right to appeal to the court or procuratorate and to file a retrial. Article 254 of the Criminal Procedure Law stipulates the subjects entitled to initiate a retrial, including three categories: 1) the president and trial committee of the court that issued the effective decision; 2) the Supreme People's Court and the people's courts at higher levels; and 3) the Supreme People's Procuratorate and the people's procuratorates at higher levels.

As far as the parties are concerned, according to article 593 of the Rules of Criminal Procedure of the People's Procuratorates: "Where the parties, their legal representatives or close relatives consider that a judgment or decision of a people's court that has entered into force of the law is in fact erroneous, and they appeal to the people's procuratorate, the people's procuratorate at the same level of the people's court that rendered the effective judgment or decision shall handle the matter in accordance with the law. Where the parties, their legal representatives or close relatives appeal directly to a higher people's procuratorate, the higher people's procuratorate may refer the appeal to the people's procuratorate at the same level as the people's court that handed down the effective judgment or ruling; where the case is significant, difficult or complex, the higher people's procuratorate may accept the appeal directly. If the parties concerned, their legal representatives or close relatives file a complaint against a judgment or ruling of a people's court that has become legally effective, and if they continue to file such a complaint after the people's procuratorate has reviewed and decided not to protest, the people's procuratorate at the next higher level shall accept the complaint." The parties concerned may appeal to the following procuratorates: 1) the procuratorate at the same level as the court that handed down the effective judgment; 2) the procuratorate at the higher level of the court that handed down the effective judgment; and 3) the Supreme People's Procuratorate.

Attention should be drawn to the fact that, according to Article 594 of the Rules of Criminal Procedure of the People's Procuratorates: "Where a complaint against a judgment or ruling of a people's court that has become legally effective has been handled by two levels of people's procuratorates and has been reviewed by a provincial people's procuratorate, the people's procuratorate will not conduct another review if there is no new evidence, provided that the defendant at the original trial may have been acquitted or there is other possibility of a major error in the judgment or ruling, except that the defendant in the original trial may be acquitted." The complaint for retrial by the Procuratorate is usually limited to two times, unless there is new evidence or the defendant may be acquitted, and the judgment or ruling has other major errors, the parties should pay attention to the limitations of the complaint procedure.

(II) After the first-instance judgment comes into effect, the party retains the right to relief, but there are many obstacles to it

In this case, the party, Meng, did not file an appeal after receiving the judgment of first instance, but applied for retrial directly without a second trial. According to the provisions of the criminal procedure law, the deadline for appeal is ten days, some parties due to their own reasons to miss this valuable ten days, but the legal process has not lost the right to judicial remedy. For those who miss the appeal period, if the results of the decision is not recognized, should pay attention to the trial supervision procedures, start to prepare the relevant evidence and materials, to the court or prosecutor's office to file a complaint.

Need to remind the reader is that, although in the procedure of the first instance after the verdict came into effect, the party still retains the right to apply for relief, but in practice, the party not only have to face the problem of difficult to file a retrial, part of the court will also be "the party to give up the right to appeal" as the reason for the dismissal of the application for retrial. Such as "Tang a criminal complaint retrial review of criminal notice" contains: "now you file a complaint to this court, although the claim that the original judgment of factual findings are not clear, but you did not appeal within the statutory appeal period, and did not provide objective cause you can not exercise the right to appeal reasonable grounds, you give up the law of the conventional remedies, that should bear the disposition of the act of loss of power caused by consequences, therefore, this court should procedurally reject your claim that the original judgment's factual findings are unclear." Therefore, the parties should pay attention to the criminal second instance procedure, when receiving the criminal judgment documents, if the judgment result is not recognized, should apply for appeal in time.