고유목적사업준비금 제도와 관련된 법원의 법형성에 대하여

Abstract

When reviewing the various interpretation methods adopted by the Korean court, there are many judgments that go beyond the scope of legal interpretation through applying regulations. And the Korean courts make those judgments by analogy and expansion beyond the literal meaning given by the regulation of laws, or reducing the meaning of the requirements and applying it in a limited way notwithstanding the legal wording. Despite the legal wording of Article 29 paragraph 3, item 4 of the former Corporate Tax Act, which corresponds to special tax provisions for non-profit domestic corporations, the Supreme Court rendered a decision(2016Du59249, “Subject Decison”) on March 9th, 2017. And the Subject Decision excludes the legal effect which is literally subject to legal application on the act, attempting a ‘teleological reduction'. While using the legislative purpose to provide ‘teleological reduction', the Subject Decision does not provide a convincing argument to justify it. It is virtually impossible to predict in advance the effect of the interest-balancing required in the legislative process and reflect all circumstances in the statutes. So, ‘the formation of law’ by the judiciary is bound to be allowed to some extent. However, such formation of law inevitably results in impairing legal stability and predictability. Therefore, it is important that what extent the formation of law is allowed to and that what procedures and methods are needed to allow this. In the field of tax law based on ‘principle of no taxation without law’, the question of how to interpret laws and regulations to suit the legal text as much as possible and how to construct their meaning is one of big issues. Considering that, it is necessary to prioritize and emphasize the interpretation of the law through reasoning rather than the subjective concept of individual judges. Even if the court attempted a interpretation with formation of law, the extent to which this is allowed should be limited to cases involving reasonable argument. Especially, establishing‘indeterminate concept’which is not even prescribed by the legislature and introducing it as a requirement of legal regulations can highly violate the principle of ‘separation of powers under the Constitution’. Thus the solution intended by judges to promote the specific validity of individual issues needs to be excluded from permitted formation of law, if the solution is not supported by a reasonable argument.