中韩税收协定中居民判定标准的探讨

Abstract

Since China and Korea established diplomatic relations in 1992, the economic and commercial communications have become increasingly frequent. Korea has become China’s fourth biggest source country of foreign investment. China has become Korea’s the biggest trade partner, the biggest target country for export, the biggest source country for import and the biggest target country for personnel motility. Due to the signing of FTA between China and Korea in 2015, the bilateral investment and personnel mobility will become more frequent. The number of cross-national enterprises and “international individuals” visit of two countries are increasing. On the premise of improving economic and commercial communications and smooth personnel mobility, how to solve the taxation problem of these cross-national enterprises and “international individuals” is a significant project that the tax authorities of the two countries must face together. It involves the tax jurisdiction of the two countries and needs mutual cooperation. The China-Korea Tax Treaty is the important legal basis to clarify tax jurisdiction and to avoid and solve the problems of taxation conflicts. Meanwhile, “resident” as a basic concept of the treaty is the premise and criterion of the application of respective resident jurisdiction rights. Its importance is self-evident. The concerned residents refer to individual resident, resident enterprise and others. The thesis highlights the unclear and unreasonable regulations existing in the criteria of determining residency and conflict coordination regulations from the perspective of individual residents and resident enterprises. For the criteria for determining a dual resident’s residence country, the author proposes center of vital interests as the first criterion, since the economy profits mainly determine the individual’s residence and living time. At the same time, 183 days rules should be introduced and accurately applied and work as the second criterion. Lastly, the author suggests weakening the role of the concept of permanent home as criterion for determining residency. For the criteria of determining a residence country for resident enterprises and double resident enterprises, there’s difference between China and Korea in determining the resident country of resident enterprises according to their respective tax laws. But with the introduction of effective management and with the new international tendency to set criteria of resident enterprises represented by OECD, the paper suggests introducing effective management judging criteria in the China-Korea Tax Treaty. But in the long run, it is advisable to take into consideration introducing “the center of vital interests” criterion. Meanwhile, the paper recommends perfecting domestic laws in line with th Tax Treaty to prevent immigration for the purpose of tax evasion.