세법상 법인격부인법리의 새로운 전개

Abstract

Disregard of Legal Entity is a system to disregard the legal entity against specific legal relation and identically handle behind entity with the corporate and impose the responsibility in the cases of unfair results against the justice and equality using corporate’s limited liability and members’ separation responsibility. It has been consistently asserted that this Disregard of Legal Entity has been developed to common laws in English and American laws and accepted in legal areas and could be applied to tax law which is a public law area at last. This is because relevant application ranges have been expanded that Disregard of Legal Entity has been already applied in English and American law countries regardless of public laws and private laws and applied between tax treaty conclusion countries in international trade. And, it is also because the application necessity of Disregard of Legal Entity to public law areas (tax law) in order to prevent the tax avoidance behaviors in the countries which are maintaining the statute law system. In this case, there could be an issue whether the Principle of good faith and Sincerity in laws is inferred, expanded and interpreted based on positive laws in the public law area where the inference, expansion and interpretation are prevented and strict interpretation principle is emphasized. Therefore, based on positive laws in tax law, this paper suggested Framework Act on National Taxes, Article 15, “Principle of Good faith and Sincerity”, and Adjustment of International Taxes Act, Article 17, “Accumulative Taxation Rules for Retained Incomes of specific foreign corporate”. And, application requirements in laws except legal requirements were suggested that concerned corporate whose legal entity is disregarded has major tax avoidance purpose like corporate emergence and establishment, and corporate income cannot clearly determine the owner in spite of tax investigation through taxation data collection procedures and inquiry and investigation rights. In addition, this study paid attention that Disregard of Legal Entity should be complementally and restrictively applied just to the cases which could not be solved by other tax laws and suggested the application possibility in tax collection procedure as well as tax substantial law area. Besides, this study disclosed it could not be allowed from the faithful aspects to cause damages to the country or local government and take advantage of Disregard of Legal Entity for the benefits by the tax payer who tries tax avoidance by abusing corporate system. Finally, this study disclosed, in order to apply the theories which have been developed in our statute law system in tax law area which regards principle of no taxation without law, Equality of Tax Burden Principal and principle of substantial taxation as the broad principles, balanced harmony and development between public laws and private laws should be required beyond the distinction.