실질과세원칙의 재검토

Abstract

The idea of No taxation without representation in liberal democracies must determined tax requisition clearly by law for taxation to a people. And the legal analysis and enforcement of the law also interpreted and enforced strictly as law sentence. It would not be able to enforce the tax law by expanding the interpretation or inference analysis. But enabling tax avoidance by the formation of tax requisition due to abuse of private autonomy in the shield of No taxation without representation goes against tax justice deprived from tax fairness ideology which established by Constitution. In a way designed to prevent tax avoidance tactics academia interpreted principle of substantial taxation as general denial statute for tax avoidance prevention, but cases did not accept as general denial statute due to No taxation without representation, in the main developed country there’s no case to prevent tax avoidance generally by principle of substantial taxation without denial statute. therefore it urgently needed that the formulation of general denial statute valid. For this the system deemed necessary in our tax laws that will be implemented the spirit of general denial statute due to the German tax Basic Law Article 42. The possible direction is considered to be amended through the Basic Law for National Taxes 14 Clause 2. the contents are “by forming potential abuse of income, profit, property, act or trading recognized as having unduly reduce the tax burden taxes apply to income, profit, property, act or trading that is deemed to be reasonable economist formed.” by the amendment I think there’s possibility of legislative general denial statute valid Constitutional.