일본에서의 조세소송상 화해제도에 관한 논의와 시사점

Abstract

Japan’s judicial system currently deals not only with civil litigation but also with administrative litigation, and the latter is governed by the Administrative Case Litigation Act. Among 46 articles in the Administrative Case Litigation Act, Article 7 stipulates as follows: “Any matters concerning administrative case litigation which are not provided for in this Act shall be governed by the provisions on civil actions.” Thus, it is interpreted that the rules of civil actions can be applied mutatis mutandis unless they are contrary to administrative litigation. In this regard, the question is whether the reconciliation system under the Civil Procedure Act can be applied to administrative lawsuits. The negation theory does not accept the settlement of a lawsuit for following reasons: differences in respect of administrative discretion and the disposal of the subject matter; the nature of administrative measures intended for the public interest; the impossibility of ensuring the observance of settlement terms; the unilateral nature of the administrative measure; and a lack of arbitration authority that could oversee settlement of the lawsuits. Furthermore, the reason that the administrative measures must be appropriate for a law may be against the rule of law. On the other hand, the restrictive affirmation theory accepts the settlement of a lawsuit in the following cases: when it falls within administrative discretion; when the facts are uncertain and the administrative agency expects a settlement; when the administrative agency is competent; when the administration considers that benefits obtained by a settlement exceed costs of the official investigation; when it is proper that a court respects the compromise between the parties on account of high uncertainty; and when there is compromise between the parties and the court considers it legitimate. Currently in Japan, there has been a noticeable trend of trying to understand the principle of legitimacy in light of the principle of equal taxation. The argument that favors reconciliation as a means of striking a balance between the two conflicting values, the principle of equal taxation and the need to reduce exorbitant social costs arising from time-consuming lawsuits, suggests significant implications. Thus, it is imperative that we create a reasonable system that can address rapid changes unfolding in recent tax disputes and litigation. A discussion on the introduction of reconciliation system is, thus, timely and pertinent.