국제적 근로소득에 관한 과세관할권의 조정 - 직접고용관계와 국제적 파견근로관계의 비교를 중심으로 -

Abstract

Today, thanks to the development of space reduction technology, international manpower exchange is active. When a person provides international work, (i) he can sign an employment contract with an employer who is a resident of the service performing country(case 1), or (ii) he can contract with an employer who's not a resident of that country, but provide labor in that country(case 2). The latter case is so-called ‘international hiring-out of labour’. According to Article 15 of the OECD Model Tax Convention on Income and Capital(OECD Model treaty), the remuneration which is derived from employment exercised country, the service performed country has the taxation right on international earned income(1st paragraph). But under the below conditions are fully satisfied, the service performed country's taxation right is limited(2nd paragraph). - ⒜ a short-term stay of less than 183 days, ⒝ the remuneration is paid by an employer who is not a resident of the country where the service is performed, and ⒞ the remuneration is not borne by a permanent establishment which the employer of the country where the service is performed. In the case 1, the taxation right of the service performed country is recognized by NOT applying the article 15, 2nd paragraph of OECD Model treaty. However, in the case 2, if an employer in above 2nd paragraph ⒝ and ⒞ is interpreted as a formal employer who has signed an employment contract with the employee, and is non-resident of employment exercising country, according to applying above article 15’s 2nd paragraph of OECD Model Treaty, the taxation right of the service performed country is denied. In order to avoid unfairly restricting the taxation right of the service performed country about case 2, OECD proposed the way of interpretation above employer as ‘an economic employer’. Some countries including Republic of Korea revised their domestic tax law that have introduced rules based on an economic employer concept. For the purpose of preventing unfair restrictions on the taxation right of the service exercised country between case 1 and case 2, I think ‘an economic employer concept’ is reasonable approach to interpret tax treaty.