민사집행절차, 도산절차상 조세채권의 취급과 그 비교 검토

Abstract

Execution procedure in a broad sense has evolved from a civil execution procedure, which is an individual execution procedure, to an insolvency procedure, which is a general execution procedure. The insolvency procedure has again evolved from a bankruptcy procedure to a rehabilitation procedure. These procedures are often performed concurrently in practice. Against this backdrop, this article aims to individually examine, from both procedural and substantive perspectives, how a preferential right and self-enforcement of tax claims are exercised and restricted, respectively, especially in the civil execution procedure, the most fundamental execution procedure, and make a horizontal comparison thereof. In the civil execution procedure, a tax claim is treated similarly to a security right, such as mortgage, and there is no preferential treatment. On the other hand, in the insolvency procedure, a type of liquidation procedure, a tax claim is classified as an estate claim, and the principle of tax priority is thoroughly upheld. Although there exists a minor restriction in collection, such restriction is not critical. In the rehabilitation procedure, a tax claim is classified as a rehabilitation claim, and is restricted by the rehabilitation procedure because the purpose of the rehabilitation procedure is the restoration of companies. However, there are several procedural privileges in the rehabilitation procedure, and during the procedure, temporary disposition for arrears may be suspended, but the exemption of a tax claim is strictly regulated. Both bankruptcy procedures and rehabilitation procedures fall within the category of the execution procedure in a broad sense, and the characteristics of the two are considered not so different from each other. Considering the fact that the execution procedure has evolved from the civil execution procedure to the bankruptcy procedure, and from the bankruptcy procedure to the rehabilitation procedure, excessive preferential treatment of tax claims in the bankruptcy procedure or the rehabilitation procedure merits careful reconsideration.