제2차 납세의무자의 구제수단에 관한 고찰 -실무상 쟁점을 중심으로

Abstract

The second tax liability system is a system that a third party in a certain relationship with a principal taxpayer has responsibility to pay the insufficient amount of tax to collect the tax when it is not possible to collect all or part of the tax from the principal taxpayer. The second tax liability system has a possibility of infringing a property right of the third party in that this system extends the responsibility to pay to the third party who does not have the establishment requirements, so many discussions on the remedies of the second taxpayers have been made. However, the discussions have been concentrated on legislative theory and interpretative theory concerning the requirements for establishment of the second tax liability system. However, the remedies of the second taxpayers are not limited to insisting the principal defects of taxation disposition in the litigation of nullity of the second taxation disposition, or to contending the requirements for establishment of the second tax liability. If the second taxation disposition infringes the law, the remedy means for the second taxpayers becomes a protest against the second taxation disposition. However, the second tax liability has appendant nature on primary tax liability, but the characteristic of the second taxation disposition referred to as a disposition independent of the primary taxation disposition causes many difficult problems on the interests in litigation in the nullity litigation of the second taxation disposition raised by the second taxpayer. Meanwhile, if the second taxation disposition is legitimate, the remedy means of the second taxpayers becomes not a protest against the second taxation disposition, but the exercise of the right of reimbursement for the principal taxpayer. At this time, issues are whether the second taxpayer has the right of reimbursement for the principal taxpayer and whether the taxation claims of the Republic of Korea can be subrogated and exercised to secure effects of the right of reimbursement, if so. In addition, another issue is whether the right of reimbursement of the second taxpayer or the right of subrogation by a person who has performed obligation is restricted in a case where bankruptcy or rehabilitation proceedings are initiated for the principal taxpayer who is a corporation. In this way, the remedies of the second taxpayer in practice are not simply limited to the interpretative theory of the basic law for national taxes or individual tax law, but the remedy procedures of the second taxpayer have intertwined legal principles of tax law, administrative litigation law, civil law and insolvency law among the taxation authorities (the Republic of Korea), the principal taxpayer, and the secondary taxpayer. In order to substantially relieve the second taxpayer, it is necessary to review substantive law issues for the establishment requirements of the second tax liability, legal procedure law issues for the dissatisfaction of the second taxpayer, and both civil law and insolvency law issues for the exercise of the right to reimbursement of the second taxpayer. In order to achieve the above things, this study generally examined the second tax liability and the second taxation disposition, and based on the content, this study examined various issues raised in practice on the remedies of the second taxpayer by classifying cases ① where the primary taxation disposition infringes the law, ② where only the second taxation disposition infringes the law, and ③ where the second taxation disposition is legitimate. Then, this study proposed legislative improvement measures based on the review results.