租稅法律主義의 發展

Abstract

The 'No Taxation without Representation' Rule which was developed and established through the historical movements to protect human rights in western society is acting as a fundamental principle in taxation in modern democratic countries. In Korea, the issue of limitation of delegation from parliament law to the administrative regulation in particular has been highlighted in tax practice. Since 1988 when the Constitutional Court of Korea("CCK") has been established, the CCK has been developing the theory to build the standard of delegation through its cases and, by the CCK's rulings, the borderline between the allowed delegation and the not allowed delegation can be said to have been cleared to a certain extent. The CCK presents the foreseeability as the requirement for the allowed delegation in order to provide stability in taxpayers' economic activities. The CCK's foreseeability test seems to be modelled after the 'Vorherbarkeit' test which was developed by the German Federal Constitutional Court. This article briefly sketched the historical background of 'No Taxation without Representation Rule' and its normative meaning, and introduced the delegation theories of domestic legal academic society and analyzed the CCK's guideline for the allowed delegation comparing with German theories. Finally, the author advised that the legal discussion has to be shifted on the substantial constituency of tax laws in terms of guarantee of taxation in observance of tax payability.