조세범처벌법상 조세포탈의 고의에 관한 검토 - 납세의무의 인식과 이에 대한 착오를 중심으로 -

Abstract

The element that the actor “shall be obliged to pay taxes” is not a d escriptive element but a normative element for the formation of the cri me. Accordingly, pursuant to the parallel evaluation theory, intention is recognized only when the actor is aware of the social meaning of the t ax obligation at the level of the general public or ordinary persons. Th e academic circle has made several attempts to identify the reality of t he social meaning of the normative element referred to in the parallel evaluation theory. Representative views include (1) the view that the r eality of social meaning must be revealed by comprehensively consideri ng the institutionalized function as well and (2) the view that social m eaning must be understood by factoring in the attributes to which criminal law pays attention. When the social meaning of the obligation to pa y taxes is explored pursuant to the said modified parallel evaluation the ory, the essence of the crime of tax evasion is to protect the legal int erest referred to as the state's right to tax under the responsibility the ory; hence, it must be understood as “an obligation to pay money or ex penses to the state due to the fact that is presupposed in the requirem ents of taxation, such as the occurrence of income.” According to the parallel evaluation theory, a misunderstanding of a n ormative element is deemed to be an elemental misunderstanding if the social meaning has not been recognized and is deemed to be a statutor y misunderstanding if the misunderstanding exists in legal evaluation de spite becoming aware of the social meaning. Thus, also in determining the establishment or non-establishment of the crime of tax evasion, w hich is a criminal offense, if the person failed to become aware of the social meaning of her tax obligation, this shall be deemed as an elemen tal misunderstanding and justify the intent. Today's courts, however, ar e either easily recognizing that the actor was aware of the obligation t o pay taxes or recognize the defendant's tax evasion crime without spe cifically examining thereof even in cases wherein the actor appears not to have been aware of the tax obligation. Apart from collecting the unp aid tax amounts from the taxpayer and imposing penalty taxes, etc. as a property sanction, in order to apply the crime of tax evasion-a punis hment-to the actor, the punishment will have justification only if the a ct's anti-value element of evading taxes via unlawful behaviors despite being aware of one's tax obligation is clearly proven. Hence, courts mu st specifically examine whether the actor has been aware of tax obligat ion in determining the establishment or non-establishing of the crime o f tax evasion, a criminal offense, and carefully judge whether to recogn ize the intent in the crime of tax evasion according thereto