조세포탈죄의 사기죄 또는 위계공무집행방해죄로서의 법적 성격에 관한 고찰

Abstract

Previously, mainstream scholastic views discussed tax evasion crime within the context of ‘fraud crime’. However, it is noteworthy that, unlike that of Germany, Japan, and the United States, tax evasion crime in the Republic of Korea has significant characteristics of ‘Obstruction of Performance of Official Duties by Fraudulent Means’, which is independently stipulated from fraud crime in Criminal Act. Tax evasion crime shares the essential characteristics of ‘Obstruction of Performance of Official Duties by Fraudulent Means’, mainly for the following two reasons. First, the provision prohibiting tax evasion crime purports to protect legal interest of the state such as the authority to impose and collect tax. Second, tax evasion crime shares with ‘Obstruction of Performance of Official Duties by Fraudulent Means’ the exact same requirement for establishment of crime, which is deceptive means’. The fact that requirement for establishment of tax evasion crime is stipulated as ‘fraud’ cannot work as legal basis for the assertion that tax evasion crime falls withing the category of 'fraud crime' because the term ‘fraud’ as used within the context of tax evasion crime merely bares the same meaning as ‘false application’, ‘false’ or ‘deception’ which are used in special tax acts such as Customs Act. In sum, coherent interpretation of provisions such as ‘Obstruction of Performance of Official Duties by Fraudulent Means’, tax evasion crime and other crimes stipulated in special tax acts which share with tax evasion crime the same requirement for establishment draws the conclusion that tax evasion crime falls within the category of ‘Obstruction of Performance of Official Duties by Fraudulent Means’ because a perpetrator of tax evasion crime acquires tangible or intangible benefits by hindering through improper means the state’s proper evaluation.