현행 상속세제의 헌법적 의의와 문제점 - 이른바 완전포괄주의를 중심으로 -

Abstract

In terms of portion of taxation, inheritance taxes do not much influence on the whole structure of the taxation system. Nevertheless, inheritance taxes are drawing much public attention, and there is a serious controversy around the ways to reform it. This is caused by differences in point of view about the meaning of the inheritance tax. Several years ago, abolition of the inheritance tax was heavily disputed in the U.S. Significant number of Americans, influenced by liberal capitalism, argued that the property established through a citizen’s own abilities and efforts should be respected meaningfully. Moreover, people thought that the intention of the property owner should be considered as a critical factor in deciding who will take up the property after their death. In this sense, it was strongly argued that the inheritance taxes restrict unreasonably the choices of property owners. However, wealthy Americans, who are charged heavy inheritance taxes, strongly supported the necessity of inheritance taxes. Similar to in the US, some Korean people argue for the abolition of inheritance taxes. However, public opinions regarding inheritance taxation have focused on imposing more strong sanctions on an irregular inheritance process rather than the abolition of inheritance taxation itself. As an irregular transfer by Samsung Group is heavily debated, it is generally considered that such a transfer is a way for the owner of Samsung to avoid inheritance taxation in the process of handing down managerial authority to his children. Although the modern system of inheritance and gift taxation has a short history, its fundamental direction has often changed from a positive system into a type-based negative, and recently into a complete-negative system. This trend was motivated by negative social perceptions of the irregular transfer of wealth by business tycoons. The complete-negative system, adopted in 2004, does not always provide reasonable solutions regarding irregular inheritance or gifts. The problems of irregular inheritance still remain as sources of controversy in Korea. Moreover, it is argued that the current complete-negative system itself is causing unexpected side effects. This article addresses the constitutional meaning and problems of the current system of inheritance taxation (the complete negative system) from the perspective of the nature and function of taxation. It starts by examining the features of the inheritance taxation system, focusing on the general meaning and function of taxation. Next, it maps out the historical development of the Korean inheritance tax system. It also considers the relationship between the current complete-negative system and other tax systems or legislation by examining a corporation system and an income tax system. Based on this analysis, the paper reviews how the inheritance tax system is, and ought to be, concretized in the national tax system or legal system. Lastly, this research points out the problems of the complete negative system in terms of the nature and limits of taxation.