한국과 일본의 조세법률주의 비교연구

Abstract

‘Taxation by statutory law’ principle both in Korea and Japan is a sort of an offspring of the more general principle of ‘administration by statutory law’, which requires statutory law for the government to restrict on people's liberty and property and also gives priority to the statutory law over the determination either by the administration or by the judiciary when both are in conflict. Both principles that a taxable event should be prescribed by statutory law and that such taxable event should be prescribed in definite and clear terms come from the common principle of ‘taxation by statutory law’. Historically viewed all those principles originated from the German ‘Grundsatz der Gesetzmäßigkeit des Besteuerung’, which means ‘principle of legal taxation’ and is somehow different from ‘taxation by statutory law’ in its nuance. The reason why the term ‘taxation by statutory law’ rather than ‘principle of legal taxation’ is used both countries may be found in their individual constitutions both of which have almost the same provision that ‘a tax and its tax rate should be stipulated by a statutory law’. Notwithstanding such historically common grounds found in the 3 countries, the term ‘taxation by statutory law’ in both countries affect the administration and especially the judiciary to apply tax laws in a more conservative manner than in Germany that the legal forms and structures taxpayers construct are generally respected with only a few exceptions for the purpose of taxation. Such attitudes, although they have their own merits, have to be compromised in harmony with the ‘equality principle’, which nowadays requires a ‘substantial equality’ and therefore gives apparently more room for the administration or the judiciary to disregard or reconstruct the legal relations taxpayers have built for the purpose of applying tax laws.