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Study on the Legal System of Financial Transfer Payment

Author: NiZhiLong
Tutor: YueCaiShen
School: Southwest University of Political Science
Course: Economic Law
Keywords: legal system of financial transfer payment theoretical analysis system defect legal perfection
CLC: F812.45
Type: PhD thesis
Year: 2009
Downloads: 139
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Abstract


The financial transfer payment comes into the domain of redistribution, as the chief means of coordinating economic development in different regions by central government. It exists since a long time ago. Other countries have probed deeply into this issue and accumulated a rich store of successful experiences. In the practice of the world, financial transfer is a transfer of capital between governments, an important part of payment of the central government or higher-level government, and also an important part of fiscal revenue of local government. Its manifestation is usually that the central government or higher-level government allocate fund to its lower government, or lower government turns over to its higher rank, or developed government brotherly provides financial aid to the undeveloped. At present, most countries adopt the legal system of vertical-transfer, which the fund flows out of the higher-level government to the lower. Hoverer, Germany adopts the system of crisscross. And the fund of regulation between the rich and the poor in France has some attributes of lateral transfer.Our system of financial transfer payment exists, but not long. For thirty years since founding of New China, our transfer payment was in financial control system because of highly centralized system. Before the reform of system of tax distribution, the transfer payment was still irregular in the overall rationing system. The system of tax distribution established in reform in 1994 makes regular financial transfer possible. But as a result of many factors, the normalized financial transfer payment is under a slow process; the common transfer payment is more normalized, and the special payment is more arbitrary; tax rebates and other forms of transfer is far from normalization and scientificity because of old system or the method to keep the primary financial control system continue.In these cases, lots of specialists and scholars in the academic community put forward their own proposals, many of which are wise ideas and thoughts. However, many of them begin study from economics, cameralistics and other subjects. From the degree of law, to establish The Law of Transfer Payment is the only theme. Related legal issues are discussed, but except the overall construction for financial transfer payment. This paper emphasizes that, the financial transfer payment extensive in influence covers a wide range of subjects, and has a strong nature of technique, specialty and politics. So we should dialectically and historically recognize the defect of our system of financial transfer payment in the process of tax distribution, draw lessons from successful experiences from foreign countries, explore and improve the countermeasures in line with China’s national condition, and provide equal access to basic public services.President Hu Jintao pointed out in the report at 17th Party Congress: to shorten the development gap between urban and rural areas must attach great importance to the equal access to basic public services, and provide guidance to essential productive factors in order to reasonably float cross border. He also pointed that, to attach great importance to the equal access to basic public services, we should increase capital transfer input for undeveloped regions. The report at 17th Party Congress gives us the guide to action to establish the system of financial transfer payment. Now the system of our country is imperfect. Therefore, it is not good for macro control, narrowing the gap in development between regions and overcoming the dual structure in urban and rural economy. So it admits of no delay to establish normalized system of financial transfer payment on the base of our own national condition and lessons of successful experiences abroad. It not only promotes balanced development among different regions and maintains social stability, but also promotes the Well-off Society all-round realized, and as well as become important moves toward a more advanced stage.This paper on the base of study upon fundamental problems of the system of financial transfer payment with multidisciplinary analysis, combs the initiation and growth of this system, probes into its function and elementary theory, analyses our presence system’s feature and defect, investigates a few developed countries’experiences and practice, puts forward some countermeasures and proposals for our system of financial transfer.The basic content of this essay includes six aspects. The first three chapters are about basic theories, which analyses the initiation and growth of financial transfer system at home and abroad, the theories of its initiation and its basic function, so as to understand the system’s connotation, background, significance, and such kinds of principal problems. The last three chapters are about the system ( also including analysis of theories), which mainly analyses the features and defects of our country’s financial transfer system, compare this system’s characters, forms, and attributes between some developed countries in order to find out their commonness. Then we can perfect our own transfer system according to it. At last, the author bring forward the proposal to perfect our country’s transfer payment system, the reform of inside and outside conditions, so that it can offer some help for equal access to financial transfer. The concrete brief introduction is following:The first chapter combs the initiation and growth of the financial transfer system. It is divided into two parts: this system’s initiation in foreign countries and in our own country. Just like other legal systems, the financial transfer system is imported from western country. It was born in Australia, but developed fully in America, Germany, France, and became a normalized system there. Then it was perfected and learned by many countries. Our country’s transfer system was born late. Actually, it was born after tax distribution in 1990s. Surely, in the reform process of financial control system the transfer payment included for thirty years since New China was founded. It laid the foundation for research. From trace of its initiation and growth, we can know the system’s path and connotation.The second chapter analyses the theoretical principle of system’initiation. The financial transfer system is not the smoke without the fire, but has its own basic theory of economics, politics and law. Public Goods Theory, Income Distribution Theory, Externality Theory are the economic basis of financial transfer system’legal system. The lack of provision of public goods, imbalance in the distribution of income, positive and negative externalities such as market failure make the provision of public finances become necessary. However, Fiscal transfer payment system as part of the public financial system can effectively overcome the market failures, provide public goods, correct the unequal distribution of income and overcome the externalities. Finance and the State as a pair of twins, is the simultaneous existence and development. In order to manage the country, the he Government is divided into several levels, while the regime must be supported by finance. Higher-level government’s transfer payment can become the lower government’revenue, while the transfer payment can make the receiver and recipient constrain each other. Therefore, hierarchy theory and the theory of separation of power become the political foundation theory of transfer system. Financial transfer payment is not only an economic issue, but also a legal issue. The value pursuit for fairness and the increasing of social welfare are the legal basis. This system has its own roots and right of voice.The third chapter is about the analysis of system’s function. The law’function is inherent with its birth, never changed with man’s will. Through the analysis of function we can know more and understand easily the transfer payment legal system. The law of transfer payment has certain function of economy, society and politics. Its economic function is to become an important lever of macro control, to coordinate development of different areas and to standardize the transfer payment, and so on. Its social function is mainly to protect and realize the human rights, the rights of freedom,survival and development, so that the people can share more results of reform and development, can have more equal access to public services. Its political function is to make transfer payment standardized, orderly and scientific through the democracy and the rule of law, to effectively restraint the operation of the payment, for the right and benefit of people.The fourth chapter is about the analysis of the feature and defect of the system. Our financial transfer payment has several decades of history if it includes the payment after the founding of the country. In the over half a century of formation, evolution, the process of development, our legal system of transfer payment has its own characteristics. That is of the government-led nature, of financial bi-direction nature, of the transfer payment uniqueness. Meanwhile, our financial transfer payment is not for a long time, and due to the inertia effect of administration, so, our system has inherent defects, and the external system is not perfect as well. The inherent flaws include both the design of the legislation and specific defects in th system, such as irrational structure, imperfect legal system below provincial inter- government, nonstandard horizontal transfer, and absence of the payment based on the construction of main functional areas. The external system is imperfect, including financial functions of both the structural defects, which also covers the supervision and control mechanisms for financial transfer payment deficiencies. These shortcomings seriously affected our nation’s financial transfer goals. Therefore, it must be standardized and improved.The fifth chapter is about inspection and enlightenment of foreign countries’legal system. Because the political and economic situation are different each other, the developed capitalist countries highlight the characteristics of their own legal system in according to concrete condition among the intergovernmental transfer payment system. In all countries the transfer system can be summarized as two types: vertical coordination and financial combining payment. The former is only between the upper and lower government, and the same level shall not carry out. Such a form is adopted by most countries in the world. The latter is not only between the upper and lower government, but also among the same levels. At present, Germany successfully implemengte this form. Besides, the financial regulator has the horizontal transfer nature in France. Although these two kinds of transfer payments have some differences, there are some common characteristics, such as the spirit of democracy and the rule of law in the process. In order to prevent alienation of power and corruption, countries have adopted the method of separation of powers and checks and balances to facilitate transfer payments to the sound operation. These successful experiences are worth drawing and learning for us in the process of law enforcement.The sixth chapter is about how to improve the transfer payment legal system of China. This chapter aimed at China’s current legal system of financial transfer in response to defects, is divided into two parts, namely, improving the internal systems and reforming the external systems. In the aspect of internal system, the rule of law is devoid, not transparent enough, far from the needs of backward regions and the requirement of scientific development, so, to establish a standardized transfer payment is urgent and necessary. Of course, in the process of legislation it should use the scientific development concept as the guide, pay attention to both equity and efficiency, and integrate the factors of transplant with the local characters. At the same time, it should adjust the structure, improve financial transfers and payments below the provincial government, perfect the legal system of horizontal fiscal transfer payment, and coordinate the systems with the building of main functional areas. In the external system, the main aspect is to improve the scientific division of the governmental obligation and power, in order to define the relationship between the government and the market, a reasonable division of proper right among the various level of government power. And perfect monitoring mechanism of the fiscal transfer payment, through the legislation clarify the power and responsibility of the department of management and supervision, so that the legislature’s supervision of regular, institutionalized, strengthening the level of supervision of administrative organs and specialized supervision, through the different levels of supervision on the wrongfulness till really reduced or even disappeared, so that the financial transfer payment system can effectively perform the role of equalization.

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CLC: > Economic > Fiscal, monetary > Finance, the state's financial > China's financial > Financial income and expenditure > Expenditure
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