실질과세원칙의 적용을 통한 관세법상 구매자와 판매자 확정에 대한 연구

Abstract

It is very important issue how to determine buyer and seller for confirming the price actually paid or payable and the existence of special relationship between contractual parties in customs valuation. However, there are many confusions in customs practice, such as mixed usage of the concept of the tax payer or buying agent with buyer and seller, because buyer and seller is not defined in WTO agreement or Korean Customs Act. The most core value of the buyer and seller is that who is the parties transfer the ownership and payment, that are also the most important compositions of contract. It is also important interpretation of the contract under civil law principal to find the intention of parties’ ownership transfer. In the end, there are many factors to find intention of parties’ ownership transfer but the documents which explicitly express intention of the parites should be considered in priority. Also, it should be considered to see details of the conclusion of a contract such as negotiation between parties, parties behavior after the contract, the characters and the purpose of the contract and so on. If buyer and seller which voluntarily declared by the parties are different with substantive buyer and seller, customs authority apply substantive-over-form doctrine under article 14 of Basic Act for National Taxes and could re-form structure of the transaction by economic substance. However, customs authority should review whether the conditions for substantive-over-form doctrice, such as if there exists tax evasion behavior or subjective purpose of tax evasion behavior. Especially, Korean Customs Act does not stipulate substantive-over-form doctrine, so legislative complement is required to re-form transaction structure. Also, for the purpose of legal stability, the guideline of concept of buyer and seller and standards how to distinguish substantive buyer and seller would be published by customs authority.