세법상 행정질서벌과 조세형벌의 중복적용 여부와 그 위헌성- 부당과소신고 및 세금계산서 관련 제재를 중심으로 -

Abstract

Citizens are not only obliged to pay tax, but also are obliged to cooperate with the tax authorities in relation to various taxes. In case of violating tax administration duties, various administrative orders are imposed, and there may be a criminal punishment to certain actions. Administrative punishment or administrative order punishment on certain actions can be viewed as a legislative discretion. However, it may be problematic to apply both administrative penalty and administrative order punishment. The Constitutional Court ruled that it is violation of prohibition against double jeopardy in case of the administrative order punishment and the administrative penalty are subject to the same action, and it is necessary to consider normative factors such as protection of legal interests. When classifying general meaning of tax the and administrative order punishment tax, essential nature of both penalty and non-deduction of input Value Added Tax on the misrepresented tax invoices are administrative order punishment type fine on the violation of tax obligation. However, there may be issue on the constitutionality on the unlawful under-reporting penalty, the tax evader and the tax invoice related administrative order punishment, and the breach of transaction order criminal penalty, as they are subject to same action and duplicated sanctions may be established. There are some overlaps between tax evader and unlawful under-reporting penalty. Considering the normative factors, the protection interests are different, so it is difficult to violate the principle of double punishment. But, there may be an issue on application of anti-overrestriction principle. On the other hand, since both the administrative order punishment in relation to tax invoice and breach of transaction order are for the normalization of tax invoice receipt order and have same protection of legal interests, it is violation of prohibition against double jeopardy principle. In addition, there may be an issue on application of anti-overrestriction principle. As a result, since the unconstitutionality of administrative penalty in relation to tax invoice and sanction provisions of breach of transaction order, legislative improvement should be prepared.