First of all, this question: fee or tax?
(a) China's social insurance system is "unified account combination".
At present, China's social insurance system is only aimed at urban workers, urban individual industrial and commercial households and flexible employees, and the trend of reform is to establish and improve the social insurance system of "unified accounting". 1993165438+1October 14 The decision made by the Third Plenary Session of the 14th Central Committee of China on establishing a socialist market economic system puts forward the reform direction of the old-age insurance system combining social pooling with individual accounts. 1 March, 9951day, the State Council issued the notice on deepening the reform of the old-age insurance system for enterprise employees, which established the principle of combining social pooling of old-age insurance with individual accounts and stipulated the objectives and principles of the reform. 1997, the State Council issued the "Decision on Establishing a Unified Basic Old-age Insurance System for Enterprise Employees", which stipulated that individual accounts for basic old-age insurance should be established for employees according to the amount of 1 1% of their salary, and all individual contributions should be credited to individual accounts, and the rest should be included in enterprise contributions. With the increase of the proportion of individual contributions, the share of enterprises should be gradually reduced to 3%. For deposits in personal accounts, the interest shall be calculated with reference to the bank deposit rate for the same period every year. Personal account storage is only used for employee pension, and may not be withdrawn in advance. When employees are transferred, all personal accounts will be transferred. When an employee or retiree dies, the individual contributions in the individual account can be inherited. In 2005, the State Council issued the "Decision on Improving the Basic Old-age Insurance System for Enterprise Employees", which stipulated that from June 2006, the size of individual accounts would be adjusted from 1 1% of the salary paid by myself to 8%, all of which would be formed by individual contributions, and the unit contributions would no longer be included in individual accounts.
The State Council 1998 12 issued the Decision on Establishing the Basic Medical Insurance System for Urban Workers, and formulated the main policy of combining medical insurance pooling funds with individual accounts. The individual contributions of employees are all included in individual accounts, and the unit contributions are determined by the overall planning area according to the scope of individual account contributions, the age of employees and other factors, and some of them are included in the overall planning fund.
The State Council promulgated the Unemployment Insurance Ordinance 1999. The principle of raising unemployment insurance funds is that employers and employees share the burden. The employer pays 2% of the total wages of employees, and the employees pay 1% of their own wages.
(B) the social insurance financing "tax" and "fee" dispute
At present, the collection method of social insurance fund in China is that the social insurance agency collects the corresponding basic old-age insurance premium, basic medical insurance premium and unemployment insurance premium. However, in the establishment of China's "unified account" social insurance system, the phenomenon that employers and individuals fail to pay, default and interrupt the payment of insurance premiums is very serious. According to statistics, by the end of 2002, the country had accumulated arrears of basic old-age insurance premiums of 43.9 billion yuan. The audit of the payment of endowment insurance premiums in 800,000 enterprises shows that 3.206 million people underreported and omitted to pay the premiums, amounting to 2.3 billion yuan. Therefore, the voice of levying social insurance tax is gradually rising.
Those who advocate levying social insurance tax believe that it has the following advantages: first, levying social insurance tax is conducive to strengthening compulsory financing, strengthening the collection of social insurance funds, and providing a stable source of funds for social security; Secondly, in the form of tax collection and management, the same tax rate can be used nationwide to provide material guarantee for the flow of labor force throughout the country; Third, levying social security tax and implementing two lines of fund revenue and expenditure are conducive to improving the supervision mechanism of social security funds, ensuring the safety of funds and reducing the collection cost; Fourth, it is conducive to international integration. At present, 172 countries and regions in the world have established social security systems, and nearly 100 countries have levied social insurance taxes.
Those who oppose the introduction of social insurance tax believe that: firstly, the introduction of social insurance tax conflicts with the tax characteristics. Taxation has three characteristics: compulsory, free and fixed. China's social insurance is a combination of social pooling and personal account, which is a partial accumulation model of social insurance and fund reserve, and has the outstanding characteristics of relative rights and obligations, especially the personal account is private and conflicts with tax characteristics; Secondly, levying social insurance tax conflicts with China's social security system model. Whether to charge or tax depends on the system model of social security, and some accumulated social insurance systems are suitable for charging; Third, the actual socio-economic situation in China determines the diversity of social security system arrangements, and changing the collection method is not suitable for the actual situation in China. Social insurance tax requires the integration of social insurance system arrangements; Fourthly, levying social insurance tax will put the government into a heavy burden again. Changing the way of financing will make the government fall into the dilemma of taking unlimited responsibility for future social insurance expenditures. Second, the legal analysis of the dispute between "tax" and "fee" of social insurance
Judging from the above-mentioned dispute between "tax" and "fee" of social insurance, the dispute between "tax" and "fee" of social insurance mainly depends on three factors: first, the characteristics of taxes and fees; Second, the institutional model of social insurance; The third is the responsible subject of social security right. The former involves tax law, while the latter two involve social security law.
(A) the tax law analysis of the dispute between "tax" and "fee" of social insurance
Analysis of the characteristics of 1, "tax" and "fee"
Taxpayers are national or local autonomous organizations, which collect money without special treatment for the purpose of fiscal revenue, with statutory tax requirements. Taxes are different from expenses and benefits and do not need to be paid. [3]
"Fee" is a non-tax public subject, not based on payment, including fees and benefits. Fees are paid by private individuals according to the use of public administration and collected by the state or local autonomous organizations, including management fees and use fees. If it is provided for special administrative services of the country, such as issuing copies of certificates and licenses, the payment of treatment and fees is administrative expenses. If the payment is to deliver to a specific object or provide public property for its use, it belongs to the use fee, such as garbage removal fee, museum admission fee, roadside parking fee, etc. Beneficial fee refers to the monetary payment of all or part of the fees charged by the state or local autonomous organizations to build, improve or increase buildings or public facilities to meet financial needs based on their sovereignty. The benefit fee does not require the obligor to actually obtain benefits, but only the possibility of obtaining benefits. It is different from expenses because there is no direct relationship between payment and payment processing. [4]
Therefore, whether the social insurance fund is raised by "tax" or "fee" depends on whether the social insurance fund has payment treatment. If there is treatment payment, you can not implement the "tax" method, but only the "fee" method. If the social insurance fund is not paid, it cannot be implemented in the form of "fee" and can only be implemented in the form of "tax".
2, financial purpose specification and guidance control purpose specification.
Tax law aims at fiscal revenue, which is called fiscal purpose norm. These norms implement the principle of taxation according to ability. If legislators mainly aim to introduce the formation effect of specific policies and summarize regulatory norms, such as economic policies and social policies. In order to realize this induced control function, we will sacrifice the principle of equal sales ability. Therefore, the essence of induced regulation is to break the principle of equal burden as an "economic incentive" to urge taxpayers to do or not do something specific. [5]
Therefore, if the social insurance fund is raised by "tax", it is necessary to distinguish whether the collection is aimed at fiscal revenue or induced regulation, and the resulting legal norm is tax law or social law.
(2) Analysis of social security law on the dispute between "tax" and "fee" of social insurance.
1, the institutional model of social insurance
According to accumulation or not, there are basically three modes of social insurance system in the world: pay-as-you-go mode, complete accumulation mode and partial accumulation mode. Pay-as-you-go system adopts the financing methods of "fixed income by expenditure" and "living within the limits of income", which can redistribute income between generations and within the same generation. The complete accumulation system is actually the distribution of personal income across time in this generation, that is, the insurance premiums paid when young are accumulated for retirement. The partial accumulation system should not only realize the intergenerational transfer of insurance costs, but also increase the savings rate, so as to overcome the shortcoming that the pay-as-you-go system cannot cope with the aging population.
The social insurance system adopting pay-as-you-go mode can raise social insurance funds through fees and taxes. The social insurance system of complete accumulation mode is suitable for raising social insurance funds by charging. The social insurance system of partial accumulation mode can combine taxes and fees.
2. The responsible subject of social security right.
Social security has developed from government-run, folk and religious charity in agricultural and pastoral society to formal institutional arrangement in industrial society, from the gift of rulers to a basic right of citizens, and has gone through a road from compassion to fairness and justice. [6] Taking social security as the obligation and responsibility of the government and acknowledging that citizens demand social security is a kind of civil right, which indicates that social security has truly become a fair institutional arrangement. The right to social security refers to the right that the law gives citizens to obtain material help from the state and society under certain conditions to meet their needs of maintaining a certain standard of living or quality of life. [7] Therefore, in modern society, the responsibility subject of social security right is the government and society. No matter what financing method the social security system adopts, that is, whether it is "tax" or "fee", the government should be responsible for the social security of citizens and bear unlimited responsibilities.
China should establish a social insurance fund raising model combining taxes and fees.
Whether the social insurance fund adopts "tax" or "fee" mainly depends on whether the social insurance fund conforms to the characteristics of tax and fee and the institutional model of social insurance. According to the analysis of the above tax law and social security law, the author thinks that China's social insurance legal system should implement the social insurance fund raising mode of combining taxes and fees: the part paid by the employer to the social pooling account is collected by taxes, and the part paid by the individual employee to the personal account is collected by the social insurance institution in the form of handling fees.
(A) the combination of taxes and fees of social insurance financing model in line with the characteristics of taxes and fees.
1. The funds in the social pooling account meet the characteristics of taxation.
According to China's current social insurance system, the funds of social pooling account are mainly formed by the expenses paid by the unit, and the main body of payment is the employer. For the employer, this part is not paid, so it can only be used in the form of tax, not in the form of fee. However, this tax is not aimed at finance, but at social policy. Therefore, it does not follow the principle of taxation according to ability, but sacrifices the principle of equality because of the public welfare requirements guaranteed by higher constitutional basic rights. This is in line with the regressive nature of social insurance tax. The resulting legal norms also belong to the category of social law.
2, personal account funds according to the characteristics of the fee.
According to China's current regulations, the amount of personal account storage is only used for employee pension, and it is not allowed to withdraw in advance. When employees are transferred, all personal accounts will be transferred. When an employee or retiree dies, the individual contributions in the individual account can be inherited. Therefore, the funds in personal accounts should be paid, not taxes, which are in line with the nature of fees. Personal accounts formed by individual employees through payment belong to personal property and meet the requirements of market-oriented reform of social insurance funds in the future. This part of the funds can be managed and invested by individuals in a suitable way.
(B) The social insurance financing mode combining taxes and fees conforms to the social security system of China.
China has established and improved the social insurance system of "unified accounting", and the social insurance fund raising mode of combining taxes and fees conforms to the social insurance system of "unified accounting". The social insurance system of "unified account and combined account" requires that the funds raised in the social pooling account be in the form of tax, and the funds raised in the personal account be in the form of fee.
China's Constitution recognizes citizens' right to social security, and the main body responsible for this basic right is the government and society. The social insurance financing mode of combining taxes and fees does not change the diversification of social insurance financing methods, but strengthens the rigidity of financing and the government's social security responsibility by taxation, which conforms to the basic principles of social security law.
(C) The specific system conception of the social insurance financing mode combining taxes and fees
1, social insurance taxpayer. Taxpayers of social insurance tax are all kinds of enterprises and institutions in cities and towns, as well as individual industrial and commercial households and flexible employees in cities and towns. Individual employees form personal accounts in the form of payment, which are withheld and remitted by the unit.
2. The object of social insurance tax. Social insurance tax belongs to the category of income tax, which is neither turnover tax nor property tax, and its tax object is the "total wages" of enterprises and institutions as taxpayers. Social insurance tax paid by enterprises and institutions can be included in enterprise management expenses and deducted when paying income tax. As far as urban individual industrial and commercial households and flexible employees are concerned, the tax object is the average salary of local employees in the previous year.
3. Social insurance tax items. The setting of tax items should proceed from the current situation of China's social security system reform, from retirement pension security projects and unemployment relief projects to medical insurance, industrial injury insurance and other projects coexist. [8]
4. Social insurance tax rate. Social insurance tax should adopt proportional tax rate, and the overall tax rate is 20%-30%.
5, social insurance tax relief project. In any of the following circumstances, it shall be reduced or exempted: (1) those who are unable to work and lack a source of livelihood; (two) due to force majeure caused heavy losses, unable to pay social insurance tax; (3) Donations made by taxpayers for public welfare relief; (four) families of disabled people and martyrs engaged in individual production and operation; (five) other projects stipulated by the state.