虚开增值税专用发票罪的司法认定研究

The main reason for the difficulty of judicial identification of the crime of issuing a special VAT invoices lies in the differences of understanding on the nature of crime and wrongful nature. This crime belongs to the non-statutory purpose crime. Theory of purpose crime is the specific expression of the dualism of worthless behavior in the nature of crime, which meets the needs of social governance and should be regarded as the "gold" standard for identifying crime and non-crime. Both theory of abstract risk crime and theory of consequence crime have some limitations. Although this crime has double illegality, it still needs to adhere to the judgment of criminal illegality under the premise of the unification of law and order. This crime can be a single act of crime, repeated act of crime, single act of crime still need to have the purpose of defrauding tax. There should be a difference between the criminalization of the act and the complete implementation of the act in sentencing. The behavior of falsifying invoice and altering invoice should be treated differently. Those who do not defraud the state of tax and do not cause tax losses should not be identified as crime of falsely a special vat invoice.