税法学への一つの反省

抄録

The study of tax law, which occupied only a small part of the study of special administrative law before World War II in Japan, has never been developed as an independent branch of Jurisprudence or science of law, whereas the Report on Japanese Taxation by the Shoup Mission in 1949, which incurred an epoch-making reform of the taxation system in postwar Japan, recommended to found a chair for the study of tax law at the department of law in every university. It is surprising that a few officials at the Ministry of Finance, without sufficient aid of scientific knowledge, has been, in reality, able to enact legislation and issue administrative orders to bind the people in such an important method as taxation, which has deep and immediate influence upon the interests of every class of people. For this reason, the author suggests the necessity for rapid development of scientific study of tax law, pointing out: 1. The principle of ‘The Rule of Law’ has not successfully been realized in both substantive and procedural systems of tax law now in force. 2. Problems about substantive provisions of tax law, which have been treated solely from economic or financial point of view, should also be reconsidered from the legal point of view, to be reexamined in the light of the principles of the new Japanese Constitution, e. g. the principle of ‘equality of tax burden’. 3. Scientific observation, and analysis of taxation as a social phenomenon is needed in order to establish a reasonable tax law system by improving the present unreasonable deficiences. 4. The present tax law system seems not to occupy its right place in the whole legal system under the Constitution which declares respect for fundamental human rights as the supreme principle. 5. Studies of tax law should not be carried out simply by accummulating the results of other branches of Jurisprudence relating to tax law, but rather be furnished with a peculiar method enough to give a systematical perspective to the complicated voluminous provisions of tax law. 6. Studies of tax law should be independent of that of administrative law, which has laid too much emphasis upon the procedural aspects of taxation. The substantive provisions of tax law, which has been neglected in the administrative law researches in spite of its great volume and importance in the system, should be the major subject of the taxation studies for taxpayers. 7. Close relation of substantive tax law provisions with accounting would not exclude the necessity to establish a branch of the legal science to analyse their legal nature.