공익법인 특수관계인 제도의 문제점과 개선방안

Abstract

The current Inheritance and Gift Act uses the related parties system by providing a series of regulations to prevent abuse of the above system while giving benefits of non-inclusion of inheritance and gift tax in relation to property contributions to public service corporations. There are more than 20 tax regimes to which the concept of a related person is applied based on the current Inheritance and Gift Act, but among them, the tax regime where the scope of the related person plays an important role is ① holding of domestic corporations, ② restriction of appointment of donors and its related persons as executives and employees of public service corporations, ③ prohibition of unfair insider trading between related persons, ④ prohibition of advertisements and public relations by related parties without fair compensation. The current provision of related parties is stipulated in Article 2-2 of the Enforcement Decree of the Inheritance and Gift Act and it expanded the scope of related parties under the Basic Act on National Taxes. Considering the fact that inheritance tax and gift tax evasion using related persons has been prevalent, the legislative purpose is fully understandable, but the scope of related parties is too wide and the contents are complicated, so it is highly likely that taxpayers will bear the burden of inheritance tax and gift tax without the intention of tax avoidance. And there are no similar cases in comparative law. Reviewing at comparative law, Korean law is a typical rule-oriented legislative example, and has the most extensive and complex contents among the countries to be compared. Germany takes a relatively opposite position to Korea, which is a principle-based legislative position, and is required to make a substantive judgment according to the basic purpose of the regulation of public service corporations. Although the United States and Japan adopt a regulation-oriented system similar to that of Korea, in particular, the scope of the related persons of United States is not wide, and the rules are simple enough that there is no point of contention in interpretation. Therefore, this article proposed to improve the regulations on restricting the hiring of officers and employees of public service corporations, adjust the scope of related parties according to kinship and management control, and abolish regulations by related parties in consideration of the revision of the Fair Trade Act. In the long run, as can be seen in German legislation, it is proposed to completely replace the regulations of related parties by introducing principle-based regulations.