개선입법의 소급효와 진정 소급입법 과세금지와의관계

Abstract

Article 13 of the Korean Constitution is unique in that it not only stipulates criminal nonretroactivity but explicitly prohibits the deprivation of property rights by means of retroactive legislation. However, since tax liability falls outside the realm of deprivation of property rights, and the principle of the prohibition on retroactive taxation is merely a principle of non taxation without law, it is the author's opinion that the principle of the prohibition on retroactive taxation, unlike the principle of prohibition on retroactive punishment allows for certain exceptions. Meanwhile, case law derives the principle of the prohibition on retroactive taxation from paragraph 2 article 13 of the Constitution on the prohibition on the deprivation of property rights by means of retroactive legislation. However, the principle of the prohibition on retroactive punishment and the prohibition on the deprivation of property rights by means of retroactive legislation cannot be viewed as operating in the same sphere. In fact, the Supreme Court case allows for an exception from the principle of the prohibition on retroactive taxation. Case law holds that retroactive taxation is prohibited in principle. However given special circumstances such as foreseeability by the public of retroactive legislation, the weakness or absence of the need to protect reliance due to legal uncertainty and disorder, justification of retroactive legislation by means of the existence of public concerns grave enough to supersede the protection of reliance, the court makes exceptions. When a person acts in accordance with the old law and forms certain expectations of bearing obligations, after which the old law is nullified due to its unconstitutionality, retroactive legislation in order to fill the legal void can serve as a telling example of such an exception. However Supreme Court case law allows for retroactive legislation only when remedial legislation is less burdensome than the old law.