조세쟁송절차에서의 조정 및 화해제도 도입방안

Abstract

The rising number of filed tax cases annually contrasts with the tax tribunal and court’s limited processing speed. This delay is exacerbated by growing taxpayers' rights and case intricacies, leading to prolonged timelines and higher costs per case. Consequently, there's a growing imperative for a tax case mediation system as Alternative Dispute Resolution(“ADR”) system. This system aims to expedite resolution by fostering discussions between taxpayers and tax authorities, addressing the need for swift and definitive case outcomes. From the perspective of the traditional division between public and private law, dispute resolution methods such as mediation and reconciliation were considered to only take place within the realm of civil law. However, recent trends have seen the introduction of various alternative dispute resolution mechanisms even in the field of public law, and in some cases, even in criminal law (this trend appears to be significantly influenced by Anglo-American law systems). In Korea, not only does the Judicial Conciliation of Civil Disputes Act include provisions for mediation, and the Civil Procedure Act incorporate a conciliation system, but also the Administrative Appeals Act expressly institutionalizes a mediation system. Moreover, even in the criminal procedure, criminal mediation is being carried out, based on the Crime Victim Protection Act. In the field of tax law, international taxation takes a leading role for ADR. The Adjustment of International Tax Act includes provisions for Mutual Agreement Procedures(“MAP”) and Advance Pricing Agreements(“APA”). These provisions are widely utilized for addressing taxation disputes related to the interpretation and application of tax treaties between the taxing authorities of Korea and the counterpart country of the tax treaty, through the consultation process. Article 25 of the OECD Model Tax Convention establishes a mandatory arbitration mechanism that empowers a third-party arbitration tribunal, rather than the judiciaries of the respective countries, to resolve cases when mutual agreement procedures fail. Foreign countries also widely embrace ADR systems based on dialogue and compromise in the context of tax disputes. This approach is prominent in legal systems like those in Anglo-american countries, where administrative and civil distinctions are less defined. In the United States, for example, tax cases can be resolved through agreements between tax authorities and taxpayers, spanning from assessment to court stages. The United Kingdom also employs a settlement-based approach, often involving external arbitrators. Even in civil law countries like Germany, courts can delegate tax cases to mediators, and France allows for mediation in administrative litigation processes, including tax disputes. In summary, the introduction of the mediation and conciliation recommendation system for tax disputes during the pre-litigation and litigation stages through amendments to the Framework Act of National Taxes and the Administrative Litigation Act is a proposed method to efficiently allocate limited judicial resources through the swift resolution of disputes. This approach will introduce a tax litigation system that aligns with global standards. It is also a way to ensure legality by formalizing the de facto mediation practices currently carried out by the courts for tax cases. Additionally, it is anticipated to fulfill the auxiliary effect of meeting the high demand in practice for mediation and reconciliation between taxpayers and tax authorities. The content of this study is expected to serve as a foundational basis for substantial discussions on the future introduction of ADR mechanisms in tax litigation procedures.