Tax legality has increasingly been celebrated in Chinese legal scholarship as a constitutional principle under the 1982 Constitution, particularly following the 2015 amendment of Article 8(6) of the Legislation Law of the People’s Republic of China.
More specifically, that amendment (article 8(6) as revised in 2015) required key tax matters, such as tax categories, the determination of tax rates, and the administration of tax collection, to be governed by laws enacted by the NPC or its Standing Committee. The NPC Standing Committee then issued the Implementation Opinions on Implementing the Principle of Tax Legality, setting out a schedule for converting existing administrative tax regulations into formal legislation.
But if tax legality is indeed a constitutional principle, why did it need to be implemented through the Legislation Law? Why did most of China’s tax system operate for decades through administrative regulations rather than formal legislation? And what does “tax legality” actually mean in the Chinese context? This blog argues that tax legality in China differs significantly from its classical constitutional meaning in Western legal traditions. Rather than acting mainly as a constraint on state power (e.g. by protecting property rights), it works mostly as a way of organising fiscal law-making: deciding which state organ may legislate on taxation, and how existing tax rules should be regularised.
The difference becomes clearer when tax legality is examined from a comparative constitutional perspective. In the classical constitutional tradition, tax legality is connected to consent, representation and limits on executive power. Taxes should not be imposed by the executive alone, but through law made by a representative legislature. This links taxation to broader constitutional commitments, including parliamentary control over public finances, the protection of property, legal certainty and, in some systems, constitutional review to invalidate unconstitutional tax measures.
For that reason, tax legality is rarely discussed as a standalone principle in Western constitutional scholarship. This is because it has long been embedded in the wider structure of constitutional government.
By contrast, the concept of tax legality was introduced in mainland China only during the 1990s, particularly through academic exchanges with Taiwan after the normalisation of cross-strait relations in the late 1980s.
A foundational contribution was Zhang Shouwen’s 1996 article “On Tax Legalism” (论税收法定主义), which introduced Taiwanese understandings of tax legality into mainland scholarship. Zhang’s doctrinal framework included the statutory determination of tax elements (kèshuì yàosù fǎdìng yuánzé 课税要素法定原则), the clarity of tax elements (kèshuì yàosù míngquè yuánzé 课税要素明确原则), and the prohibition of taxation without legal basis (yījù fǎlǜ nàshuì yuánzé 依据法律纳税原则). It drew heavily on Taiwanese scholarship that had itself absorbed and systematised Japanese fiscal law theory, particularly the doctrinal taxonomies developed in Kaneko Hiroshi’s landmark treatise Sozeihou (Tax Law).
This Japanese-Taiwanese intellectual lineage also shaped Zhang’s terminology and conceptual framework, reflecting how tax legality entered mainland China as part of a broader imported doctrinal structure rather than as a fully differentiated constitutional concept.
The terminology also suggests a shift in emphasis. In Japanese tax law scholarship, Kaneko Hiroshi formulated the doctrine as 租税法律主義 (sozei hōritsu shugi) – literally “tax law legalism” – where the suffix 主義 (-ism) denotes a normative doctrinal commitment. Taiwanese scholars preserved this formulation. When Zhang Shouwen introduced the concept into mainland scholarship in 1996, he similarly employed the term 税收法定主义 (shuìshōu fǎdìng zhǔyì, tax legalism), maintaining the -ism suffix and thus presenting tax legality as an academic doctrine with normative force.
Zhang employs the term 课税 (kèshuì, to levy tax), which derives from the Japanese 課税 (kazei) and entered mainland scholarship through Taiwanese intermediaries. By contrast, mainland Chinese legislation and administrative practice consistently use the term 征税 (zhēngshuì, to collect tax) – as seen, for example, in the Tax Collection and Administration Law (税收征收管理法).
The decisive terminological shift occurred not in legislation itself, but in policy discourse. Returning to the 2015 amendment to the Legislation Law mentioned at the start of this post: it enumerated specific tax matters requiring statutory enactment, yet did not employ the phrase 税收法定原则 (shuìshōu fǎdìng yuánzé, tax legality). That formulation appeared in the NPC Standing Committee’s Implementation Opinions mentioned above, a programmatic document that operationalised the legislative mandate. The shift from 主义 (-ism/doctrine) to 原则 (principle) is revealing, although Chinese legal scholarship has not treated it as significant. Leading scholars use the terms interchangeably.
Yet the terminological choice in official discourse was not casual. In Chinese political-legal usage, ‘principle’ (yuánzé, 原则) denotes an operational guideline that fits within the existing institutional framework, whereas -ism (zhǔyì, 主义) implies a systematic normative commitment.
The fact that the state chose ‘principle’ (yuánzé, 原则) while scholars continued to treat the two terms as interchangeable suggests that the shift from doctrine to principle happened in governance practice rather than in legal theory.
In the process of this intellectual reception, Chinese scholars such as Zhang and Liu became fully aware of the Western constitutional origins of tax legality. Thus, Liu traces the principle’s origins to constitutional developments from Magna Carta onwards and argues that taxation concerns citizens’ most fundamental property interests and therefore requires democratic authorisation through legislation. Yet both Zhang and Liu treated the constitutional ideas informing their analyses largely as historical background. Their practical concern remained institutional ordering: who should have authority to make tax law, how delegated legislation should be controlled, and how administrative tax regulations should be converted into statutes.
Miao Lianying’s work goes further by situating tax legality within three sets of constitutional relationships: between the state and the people, the legislature and the executive, and central and local government. Even there, however, the analysis focuses on the proper allocation of legislative authority rather than judicially enforceable limits on the state’s taxing power.
The difficulty of this doctrinal approach is visible in the constitutional text itself. There is no express provision on tax legality in the 1982 Chinese Constitution. Article 56 states that “citizens of the People’s Republic of China have the duty to pay taxes in accordance with the law”. This is a duty clause rather than an explicit limit on the state’s taxing power.
Yet Chinese scholars have increasingly interpreted this provision as the constitutional basis for tax legality. This reading was influenced by Taiwanese scholarship, which developed a similar interpretation from a similar provision in Article 19 of the ROC Constitution.
But the Taiwanese interpretation rests on an institutional setting that does not exist in mainland China. In Taiwan, the Judicial Yuan’s Council of Grand Justices developed, through constitutional interpretations over several decades, a substantive understanding of tax legality. By connecting it with property rights under Article 15 and the principle of legislative reservation under Article 23, the Grand Justices transformed it into a normative constraint on the state’s taxing power.
In mainland China, constitutional interpretation belongs to the NPC Standing Committee and has not been used to build a comparable doctrine. The result is a partial transplant: Chinese scholars thus borrowed the doctrinal language of Taiwanese tax legality without the institution – judicial constitutional review – that gave it constitutional force.
This matters, as the State Council then occupied much of the tax law-making space. In 1985, the NPC authorised the State Council to make provisional regulations on matters relating to economic reform, including taxation. The State Council then used this authority to regulate most of China’s tax system through administrative regulations rather than laws enacted by the NPC or its Standing Committee.
Taxation thus became primarily an instrument of economic management. Stamp duty illustrates the point. Between 1991 and the formal enactment of the Stamp Duty Law in 2022, the State Council adjusted the stamp duty rate more than ten times without any legislative involvement of the NPC or its Standing Committee. There was no room for the constitutional ideals of fiscal democracy inherent in the principle of tax legality. When the Legislation Law was first enacted in 2000, taxation was not clearly reserved to legislation. Only in 2015 did the amended Legislation Law explicitly require taxation to be governed by statute. By then, however, fifteen of China’s eighteen major taxes had been operating under State Council regulations.
The post-2015 reforms therefore did not change much of China’s fiscal constitution. The NPC Standing Committee described the process as “parallel elevation” (píngyí shàngshēng, 平移上升): existing State Council tax regulations were converted into statutory laws with limited substantive change. The reform primarily consolidated the existing regulatory framework, but it did not necessarily produce democratic scrutiny or rights-based limitations on the state.
Tax legality in China therefore functions mainly as an instrument of governance. Moreover, several major taxes, including real estate tax, land value-added tax, and urban land use tax, also continue to rely primarily on administrative regulations.
In conclusion, tax legality in China has a different function from that in the Western constitutional tradition. In China, the constitutional framework is structured around the unified leadership of the Communist Party and the institutional supremacy of the NPC. Taxation is framed less as an encroachment upon individual rights than as a sovereign fiscal function exercised in the public interest.
Tax legality is not primarily a device for courts or representative institutions to limit the state’s taxing power. It is an internal way of ordering fiscal law-making within the existing constitutional and political structure.
It can improve clarity, legality and legislative form, but this also means that the same constitutional language performs differently in different institutional settings. The Chinese case is yet another example that constitutional concepts do not travel unchanged.
By Dr Zhiheng (Lily) Lang, Lecturer, Zhengzhou University, China; Honorary Fellow and Visiting Scholar, University of Lincoln, UK.
British Association of Comparative Law 