1. Collection of basic case information

Case Type: Lawyer Litigation Case

Business Category: Administrative Litigation .

Court judgment date: June 29, 2015 .

Court name: Ningbo Zhenhai District People's Court

Attorney's name: Mao Diqun

Law Firm Name: Zhejiang Boning Law Firm

Contribution: (real name, unit + name)

Review: (real name, level by level)

Search subject terms: whistleblower, administrative litigation subject qualification, legal interest

2. Collection of case text

Case of whistleblower suing tax authority for failing to perform statutory duties

【Introduction to the case】

On January 20, 2015, a company filed an application for investigation and punishment with the district local taxation bureau. The application stated that the whistleblower reported that the whistleblower had concealed rental income and evaded tax payment according to law. Accordingly, the tax authorities are required to perform their duties in accordance with the law, investigate and deal with the tax evasion of the reported person, recover the corresponding taxes and investigate the administrative and legal responsibilities of the relevant responsible persons.

On January 22, 2015, after receiving the whistleblower's report letter, the local taxation bureau in a certain district contacted the whistleblower in time and asked the whistleblower to provide further relevant clues and materials. The whistleblower provided further evidence to the district local tax bureau on January 27. After review, the district local taxation bureau filed a case for inspection on January 28, and delivered a tax inspection notice to the person being reported on February 2. After investigation, the reported person did indeed have tax evasion. On March 31, the District Local Taxation Bureau delivered the "Notification of Tax Administrative Penalty Matters" to the informant according to law.

On March 14, 2015, the whistleblower filed an administrative lawsuit with the people's court, arguing that the district local taxation bureau did not investigate and punish the third party's tax evasion, nor did it make any reply to the organizer, and his behavior constituted an administrative omission. , violated the legitimate rights and interests of the whistleblower, and therefore requested the people's court to confirm that the district local taxation bureau's failure to perform its duties was illegal, and ordered it to investigate and punish the third party's tax evasion.

【Agent opinion】

We believe that in this case, the whistleblower does not have the qualification to be a plaintiff in administrative litigation, and the plaintiff's lawsuit should be dismissed.

The right to report is a procedural right, including the right of the whistleblower to obtain a reply to the report, the right of the whistleblower to request the investigation and punishment of illegal acts, the right to receive rewards, etc. The failure of the whistle-blower agency to respond or investigate and deal with the whistleblower harms the whistleblower. The right to respond to reports, request for investigation and punishment of illegal acts, etc. However, the whistleblower's right to report is a constitutional right. The protection of constitutional rights in my country's constitution does not determine the remedy for litigation. The whistleblower's right to be rewarded, according to the relevant laws and regulations of our country, is only an anticipatory right. Whether the whistleblower has the qualification to be the subject of administrative litigation depends on whether the whistleblower has a legal interest in the administrative act being sued. There is a direct causal relationship, and this causal relationship belongs to the relationship that has occurred or will occur, and does not include the possible impact or the possible indirect causal relationship. It should be pointed out that although the "legitimate interest standard" referred to in the "Administrative Litigation Law of the People's Republic of China" and the "legal interest standard" referred to in Fa Shi [2000] No. The two are actually two compatible standards. "Legal interest" should be understood as the interest or rights and interests that the law should protect, which is basically close to the category of "legitimate rights and interests". The whistleblower has not been violated by the reported matter, but there is no direct causal relationship between the reward he expects to receive based on the real-name reporting of others' illegal acts, and the inaction of the administrative organ on the reported matter.

To sum up, in this case, there is no legal interest between the whistleblower and the district local taxation bureau on whether to respond to the whistleblower or the administrative act of investigation and punishment. It does not have any actual impact, so it does not have the qualification to be a plaintiff in an administrative lawsuit.

【Judgment Result】

The plaintiff's suit was dismissed.

【Judgment Document】

The court held that, according to the provisions of paragraph 1 of Article 25 of the Administrative Litigation Law of the People's Republic of China, the counterparty of the administrative act and other citizens, legal persons or other organizations that have an interest in the administrative act have the right to file a lawsuit. And according to Article 27(1) of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Litigation Law of the People's Republic of China, the plaintiff bears the burden of proof for the following matters: (1) Prove that the lawsuit complies with the statutory conditions , unless the defendant believes that the plaintiff has sued beyond the time limit for indictment. In this case, the plaintiff shall bear the burden of proof that he has an interest in the administrative act being sued. The main basis used by the plaintiff to prove that it has an interest in the sued land tax for failing to perform its statutory duties of tax collection and punishment is that it is potential and expected to obtain rewards after reporting, and this potential and expected possibility is interest. relation. However, the interest should be a legally protected, actual or inevitable, immediate and direct interest. If the interest is extended to the potential and expected possibility that the plaintiff considers, that is, any citizen complaining , legal persons or other organizations have the qualifications of the plaintiffs and can file lawsuits, which will make the limitation of the qualifications of the plaintiffs in the law meaningless.

To sum up, according to the evidence provided by the plaintiff, the plaintiff did not provide sufficient evidence to prove that it has an interest in the alleged failure of the local tax to perform its statutory duties, and the plaintiff's lawsuit should be dismissed.

【Case Analysis】

Does the whistleblower have the qualification to be the subject of administrative litigation?

Administrative litigation plaintiff qualification means that the administrative counterpart who enjoys the right of action should have the right to sue.

What are the conditions. The right to sue is one of the basic rights that the Constitution entrusts to every citizen, that is, the parties choose to resolve disputes by means of litigation. The qualification of plaintiff in administrative litigation is the standard for determining what kind of plaintiff can become the plaintiff in administrative litigation, that is, what kind of person files a lawsuit based on what conditions, and the court can accept it. Whether the whistleblower has the qualification to be the subject of administrative litigation depends on whether the whistleblower has a legal interest in the administrative act being sued. There is a direct causal relationship, and this causal relationship belongs to the relationship that has occurred or will occur, and does not include the possible impact or the possible indirect causal relationship.

Article 2 of the "Administrative Litigation Law of the People's Republic of China" (Decree No. 16 of the President of the People's Republic of China on April 4, 1989) stipulates that citizens, legal persons or other organizations believe that the specific administrative acts of administrative organs and staff of administrative organs violate their legality. rights and interests, and have the right to file a lawsuit in a people's court in accordance with this Law. Article 41 stipulates that initiating a lawsuit shall meet the following conditions: (1) the plaintiff is a citizen, legal person or other organization who believes that the specific administrative act infringes upon its legitimate rights and interests; (2) there is a clear defendant; (3) there is a specific lawsuit The request and the factual basis; (4) It belongs to the scope of the people's court and the jurisdiction of the people's court. Article 12 of Law Interpretation [2000] No. 8 stipulates that citizens, legal persons or other organizations that have a legal interest in a specific administrative act may file an administrative lawsuit in accordance with the law if they are dissatisfied with the act. Article 13 of Fa Shi [2000] No. 8 also lists four situations in which the plaintiff in an administrative lawsuit has an interest in a specific administrative act in a legal sense: (1) The specific administrative act being sued involves its adjacent rights or fair competition (2) Having a legal interest in the administrative reconsideration decision of the accused or being added as a third party in the reconsideration procedure; (3) requiring the competent administrative organ to investigate the legal responsibility of the perpetrator according to law; (4) with There is a legal interest in revocation or modification of a specific administrative act.

Based on the above provisions, the legal interests can be expressed as follows: the legitimate rights and interests of the plaintiff in administrative litigation are violated by specific administrative actions, and there is a direct causal relationship between the rights and the specific administrative actions; this causal relationship belongs to the The relationship that occurs or will occur, does not include the possible impact or the possible indirect causal relationship. Whistleblowers who have not been infringed by the reported matters, the rights or interests expected to be rewarded for reporting based on real-name reporting, and the inaction of the administrative agency without responding or checking the reported matter, or with the administrative agency regarding the reported matter. There is only an indirect causal relationship and no direct causal relationship between the verification conclusions, so the defendant’s administrative act of responding to the plaintiff’s reporting behavior has no administrative law interest with the plaintiff, and does not have any impact on the plaintiff’s rights and obligations. actual impact.

【Conclusion and Recommendations】

There are two types of whistleblowing, one is whistleblowing involving self-interest; the other is whistle-blowing involving public interests, which is not directly related to the whistleblower’s own interests, such as reporting on taxpayers’ tax evasion. The report in this case falls into the second category above. Where there is a right, there must be a remedy, and a right without a remedy can hardly be called a right. So how to protect citizens' right to report?

Article 20 of the "Administrative Measures for Reporting Tax Illegal Acts" stipulates that for real-name reporting cases, the reporting center may, at the request of the whistleblower, briefly inform the whistleblower of the results of the investigation related to the whistleblower; Before the case is concluded, the information of the investigation and handling of the case shall not be disclosed to the prosecutor. When informing the whistleblower of the results of the investigation, it shall not inform the whistleblower of the investigation and punishment of tax violations other than the clues of the whistleblower, and shall not provide the tax treatment (penalty) decision and relevant case information. It can be seen that the relevant laws and regulations of our country do not stipulate the duty of the tax authorities to take the initiative to inform the whistleblower. The tax authority may or may not make a "reply", and the "reply" is not a statutory obligation of the tax authority. Since the act of "reporting to a report" does not have the distinct characteristics of implementing administrative powers and performing administrative duties, and does not have the requirements for powers and duties, there is no problem of administrative omissions by tax authorities. However, the "Administrative Measures for Reporting Tax Illegal Acts" also gives the whistleblower the right to request the tax authority to perform the duty of disclosure. Failure to perform the notification obligation may constitute administrative omission. Since the relevant laws and regulations of our country do not stipulate the tax authority's obligation to take the initiative to pay the whistle-blower reward, the right to obtain the reward must also be voluntarily submitted by the whistleblower to the whistleblower acceptance authority. Decide.