헌법상 조세법률주의와 세법의 해석방법론 -‘의심스러운 경우 납세자의 이익으로’의 해석방법론을 중심으로

Abstract

The legal relationship between the state and the taxpayer regarding taxes is equivalent to a debtor and creditor. Taxing authorities have no discretionary power to impose taxes because the enacted laws immediately establish tax liabilities. Therefore, all administrative actions of taxing authorities must be strictly bound by taxing statutes. Under conventional interpretative methods, literal/systemic/historical/teleological interpretation must be applied for all legal areas. Furthermore, for specific cases, the interpretation must reflect characteristics of the regulatory law based on a conventional interpretative approach. For example, the principle of legality should be first considered in interpreting criminal law. The British style principle of ‘Taxation by Statutory Law’ (i.e., the principle of ‘no taxation without representation’) stipulated in the Korean Constitution protects individuals' constitutional rights and gives priority thereto. Likewise, to interpret tax law, the principle of ‘no taxation without representation’ must be given preferential consideration based on a conventional interpretative approach. In a basic framework, the interpretation of laws and contracts applies the same interpretation methodology. The interpretation of the terms and conditions is structurally similar to interpreting laws, which allows the tax laws to be interpreted as the terms and conditions. Thus, the literal approach to interpretation should be the starting point to interpret a tax-law provision. In other words, the strict literal approach is the primary method of interpretation. Based on such an approach, functional interpretation of the law can determine the whole meaning of the provision. Even after this process, when the provision can be interpreted in multiples of modes and each interpretation has a reasonable ground, the ‘in dubio contra fiscum’ is to be applied as the last step in the control-of-interpretation level. Enacting tax laws that the public can easily understand is practically impossible. Yet enacting tax laws that are too complex for even experts such as taxation law professors to comprehend is entirely different matter. There are reports that when faced with ambiguous provisions in the tax laws, the revenue officers aggressively interpret the provision so that the highest amount of tax can be imposed on the taxpayers. If this were to be true, it would be erroneous. Tax law statutes are presumed constitutional and controlling the norms should be approached with caution. However, for the National Assembly to enact unconstitutional tax law statutes or for taxing authorities to make administrative actions contrary to the constitutional principle of ‘Taxation by Statutory Law’ should not be permitted. Therefore, Korean courts and the Constitutional Court should interpret tax laws in light of the constitutional principle and sustain an inevitable norm regulation ad hoc. Judicial decisions that protect individuals’ constitutional rights are needed because legislations must not violate the constitutional principle of ‘Taxation by Statutory Law.’ Not only that, but the taxing authorities have no power to regulate norms such as tax law statutes or related administration legislations.