The crimes of fraudulently obtaining export tax refunds and falsely issuing value-added tax special invoices are both crimes that endanger the order of tax collection and management. The two have similarities in the main elements, subjective aspects, and deceptive behavior, but there are also obvious differences between the two crimes. In judicial practice, the crime of falsely issuing value-added tax special invoices and the crime of fraudulently obtaining export tax refunds often manifest as an implicated relationship between means and purposes, which can be said to be a pair of twin crimes. The author will explain the differences and connections between the two crimes one by one.

The crime of fraudulently obtaining export tax refunds refers to the act of fraudulently reporting exports or other deceptive means to obtain a relatively large amount of national export tax refunds. The crime of falsely issuing value-added tax invoices refers to the act of intentionally violating national invoice management regulations and falsely issuing value-added tax special invoices in order to seek illegal economic benefits, causing losses to the country.

1、 The boundary between the crime of fraudulently obtaining export tax refunds and the crime of falsely issuing value-added tax special invoices

The legal interests infringed upon by the two are different in content.

The crime of fraudulently obtaining export tax refunds infringes on the institutional order of national tax collection and management, as well as the ownership of public property; The crime of falsely issuing value-added tax special invoices infringes on the institutional order of invoice management and the institutional order of national tax collection and management.

In terms of objective elements, the two have different criminal methods and methods.

The crime of fraudulently obtaining export tax refunds manifests as the act of the perpetrator falsely reporting exports or other fraudulent export tax refunds during the export process of the goods; Falsely issuing value-added tax special invoices is manifested as the behavior of the perpetrator in the domestic production and sales of goods, falsely issuing value-added tax special invoices for others, for oneself, allowing others to falsely issue value-added tax special invoices for oneself, or introducing others to falsely issue value-added tax special invoices.

2、 The connection between the crime of fraudulently obtaining export tax refunds and the crime of falsely issuing value-added tax special invoices

According to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Fraudulent Export Tax Refund (hereinafter referred to as the "Interpretation"), if the crime of fraudulent export tax refund is committed and constitutes the crime of falsely issuing value-added tax special invoices or other crimes, the offender shall be convicted and punished in accordance with the provisions of the Criminal Law that impose heavier penalties. Regarding the issue of the number of crimes of fraudulently obtaining export tax refunds and falsely issuing value-added tax special invoices, as the crime of falsely issuing value-added tax special invoices in judicial practice is one of the important means of fraudulently obtaining export tax refunds, and the implementation of fraudulently obtaining export tax refunds often involves falsely issuing value-added tax special invoices as a necessary link. At this time, both crimes of fraudulently obtaining export tax refunds and falsely issuing value-added tax special invoices are committed, Therefore, it is necessary to consider whether to choose a felony punishment or a combination of multiple crimes based on the specific behavior pattern.

1. Choose a felony punishment.

If the perpetrator falsely issues value-added tax special invoices to defraud export tax refunds, it can be considered that the behavior of falsely issuing value-added tax special invoices is related to the means and purposes of defrauding export tax refunds. There is an implicated relationship between the two, and a felony punishment should be chosen. For example, in the case of (2016) Min 0582 Xing Chu No. 1460, the court found that the defendant fraudulently obtained a relatively large amount of export tax refund from the state by issuing a special value-added tax invoice, and also committed two crimes: the crime of issuing a special value-added tax invoice falsely and the crime of obtaining an export tax refund fraudulently. This is an accomplice of the act of means and the act of purpose, and should be punished with a felony. Similar cases include (2016) Min 02 Xing Chu 63, (2017) Yue 07 Xing Chu 33, (2017) Min 0206 Xing Chu 1055, (2017) Su 1302 Xing Chu 740, (2018) E 0281 Xing Chu 478, etc., (2019) Xiang 0903 Xing Chu 633, (2019) Min 05 Xing Zhong 1916, (2020) New 23 Xing Chu 13, etc.

2. Combined punishment for multiple crimes.

(1) The perpetrator not only fraudulently issues value-added tax special invoices for export tax refunds for others, but also causes others to issue value-added tax special invoices for themselves, and should be punished for multiple crimes. For example, in the case of (2018) Hu 0113 Xing Chu No. 2187, the court held that the defendant Sun, in collaboration with others, had others falsely issue value-added tax special invoices for the unit, resulting in a large amount of tax. His behavior has constituted the crime of falsely issuing value-added tax special invoices; Regarding the characterization of the defendant Sun, who was instructed by Xu to falsely issue value-added tax special invoices for others to obtain export tax refunds, the court believes that the defendant Sun, who knew that others had used the falsely issued value-added tax special invoices to obtain export tax refunds, still committed the corresponding act of falsely issuing value-added tax special invoices. He should be recognized as an accomplice in obtaining export tax refunds according to law, and his behavior should be convicted and punished for the crime of fraudulent export tax refunds. The defendant Sun committed multiple crimes before the judgment was pronounced, and should be punished in accordance with the law.

(2) The perpetrator has engaged in both the act of falsely issuing or causing others to falsely issue value-added tax special invoices for themselves in order to obtain export tax refunds, and the act of falsely issuing value-added tax special invoices for others (but without joint intention to defraud export tax refunds). At the same time, it constitutes the crime of defrauding export tax refunds and the crime of falsely issuing value-added tax special invoices, and should be punished for multiple crimes. For example, in the (2016) Hu 01 Xing Chu 28 case, the defendant Ding Mouquan falsely issued value-added tax special invoices with Company A controlled by him or Company B controlled by Zhang, as well as other units introduced by Yang, and applied for export tax refund, fraudulently obtaining an export tax refund of 22.5931 million yuan. Ding constituted the crime of fraudulently obtaining export tax refund; In addition, in the case of Ding Mouquan and Zhang Moujing falsely issuing value-added tax special invoices for companies controlled by the other party, both parties did not have a common intention to defraud export tax refunds, so their actions respectively constitute the crime of falsely issuing value-added tax special invoices... Ding Mouquan's actions constitute the crime of defrauding export tax refunds and the crime of falsely issuing value-added tax special invoices, and should be punished for multiple crimes. Similar cases include (2017) Su 1302 Xing Chu No. 740 and (2018) Wan 08 Xing Chu No. 17.

3. Convicted and punished for the crime of falsely issuing value-added tax special invoices.

The defendant objectively provided assistance for others in defrauding export tax refunds, but due to the subjective lack of intentional tax fraud, which does not comply with the principle of subjective and objective consistency, he was convicted and punished for the crime of falsely issuing value-added tax special invoices. For example, in the (2016) Hu 01 Xing Chu 28 case, Ding introduced other companies to falsely issue value-added tax special invoices for Zhang and others. Ding subjectively did not have the common intention to deceive Zhang into obtaining export tax refunds, but rather to earn the invoicing fees for falsely issuing value-added tax special invoices. Therefore, Ding's behavior should be recognized as the crime of falsely issuing value-added tax special invoices.

3、 Which is the felony of fraudulently obtaining export tax refunds or falsely issuing value-added tax special invoices

The Notice of the Supreme People's Court on the Sentencing Standards for Falsely Issuing Special Invoices for Value Added Tax (Law [2018] No. 226) clearly states that the sentencing standards for the crime of Falsely Issuing Special Invoices for Value Added Tax can be implemented by referring to the sentencing standards for the crime of fraudulently obtaining export tax refunds. According to the provisions of the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)", obtaining export tax refunds through fraud is a serious crime if the amount ranges from 100000 to 500000 or from 500000 to 2.5 million, but factors such as attempted attempts and amounts in different ranges need to be considered at the same time; If the amount exceeds 2.5 million, both crimes shall be sentenced to fixed-term imprisonment of at least 10 years or life imprisonment, with equivalent sentencing. Specifically, in judicial practice, there are several recognized situations.

1. If both completed and attempted crimes exist simultaneously, they shall be convicted and punished as completed crimes.

In the (2016) Hu 01 Xing Chu 28 case, Ding and Zhang asked others to falsely issue value-added tax special invoices for themselves to obtain export tax refunds, but did not actually deceive them. Ding and Zhang's behavior of causing others to falsely issue value-added tax special invoices for themselves has met the constitutive requirements of the crime of falsely issuing value-added tax special invoices; Although this behavior also constitutes the crime of fraudulently obtaining export tax refunds and is an attempt, according to the principle of selecting a felony punishment, the punishment should be evaluated as the more severe offense of falsely issuing value-added tax special invoices.

2. Determination of the difference between the amount of tax fraud and the amount of false charges.

(1) Convicted and punished for charges with larger amounts or heavier sentencing. For example, in the (2022) Xiang 0991 Sentence No. 57 case, the defendant Chen, who falsely issued a value-added tax special invoice with a tax amount of 1884883.5 yuan, was sentenced to a heavier penalty than defrauding an export tax refund of 245034.84 yuan. Therefore, the defendant Chen, who falsely issued a value-added tax special invoice for himself and then obtained an export tax refund, should also be convicted and punished according to the crime of falsely issuing a value-added tax special invoice. The same applies to cases such as (2020) Xin 23 Xing Chu 13, (2019) Xiang 0903 Xing Chu 633, and (2017) Yue 0606 Xing Chu 4797.

(2) Recognize the amount of tax fraud by including it in the falsely opened amount. For example, in the case of (2017) Min 0206 Xing Chu No. 1055, an analysis of the charges constituted by the actions of the defendants Wang and Lu in this case: After investigation, under the guidance of Shi, the defendants Wang and Lu falsely issued value-added tax special invoices to defraud the national export tax refund. Wang participated in defrauding the export tax refund of RMB 2039100.84, and the tax amount that had been falsely issued but not yet defrauded was RMB 16871132.4; The defendant Lu participated in defrauding an export tax refund of RMB 660852.88, and the tax amount that has been falsely declared but has not yet been defrauded is RMB 1855622.98. His behavior has constituted the crime of defrauding an export tax refund and falsely issuing a value-added tax special invoice. According to Article 9 of the Interpretation, those who commit the crime of fraudulently obtaining export tax refunds and constitute other crimes shall be convicted and punished in accordance with the heavier punishment provisions of the Criminal Law. Therefore, the defendants Wang and Lu are held criminally responsible for the crime of falsely issuing value-added tax special invoices, and the amount of tax defrauded should be included in the amount of the crime of falsely issuing value-added tax special invoices.

When the punishment is equivalent, the determination shall be based on the stage of the defendant's behavior.

As in the (2017) Yue 07 Xing Chu 33 case, the actions of defendants Wen and Liu both constitute the crimes of fraudulently obtaining export tax refunds and falsely issuing value-added tax special invoices. If multiple articles of law are simultaneously violated for one crime, a felony punishment should be chosen. According to Article 9 of the Interpretation and the sentencing of the crimes of fraudulently obtaining export tax refunds and falsely issuing value-added tax special invoices, which are particularly serious in terms of legal and judicial interpretations, the penalties for the crimes of fraudulently obtaining export tax refunds are equivalent to those for falsely issuing value-added tax special invoices. At the same time, considering that the criminal acts of defendants Wen and Liu mainly occurred during the stage of fraudulently obtaining national export tax refunds, the defendant Wen Liu was held criminally responsible for the crime of defrauding export tax refunds.