실질과세원칙의 관점에서 바라본 관세법상 “물품을 수입한 화주”의 범위 - 대법원 2014. 11. 27. 선고 2014두8636 판결을 중심으로 -

Abstract

The Korean Supreme Court Decision 2014Du8636 on November 27, 2014 is about how to decide a taxpayer in the Customs Act of Korea. Although some scholars argue that the substance over form principle must be applied very narrowly because the Customs Act of Korea itself doesn't have provision on the substance over form principle, the Korean Supreme Court Decision 2002Du8442 says that substance over form principles can be applied customs law and proposes a guidance to decide a taxpayer that a tariff taxpayer is ‵an owner of imported goods′rather than ‵a nominal person on declaration report′on April 11. 2003. According to the fact of 2002Du8442 Decision, the authority imposes an evaded tariff on ‵a nominal person on declaration report′, and he argues substance over form principles should be applied. However, the fact of 2014Du8636 Decision is opposite. In this case, the authority imposes an evaded tariff on plaintiff, a person whom an effect of import belongs to, and who dominates process of import rather than ‵a nominal person on declaration report because of insolvency. The Korean Supreme Court's Decision applies the substance over form principle in the context of legal substance, because it considers a legal owner who is in a prior stage before an import declaration as a critical character. Recently the Korean Supreme Court widely applies the substance over form principle to other tax issues and judges this principle in the context of economic substance. However, 2014Du8636 Decision narrows the scope of application of the substance over form principle on customs law. This principle must be recognized in customs law like other taxes following current changes in tax law area because it is a fundamental doctrine of tax. It is reasonable that a person whom an effect of import actually belongs to, must be considered as a taxpayer in order to achieve goals of customs law, such as securement of financial revenue and protection of domestic industry and reflect a purpose that revision of the Customs Act of Korea from ‵a nominal person on declaration report′ to ‵a substantial person in charge′as a taxpayer. It is more desirable to definitely stipulate the substance over form principle in the Customs Act of Korea and revise a taxpayer in the Customs Act of Korea from ‵an owner of imported goods′to ‵an importer of goods′which is the same stipulation as the Value-Added Tax Act of Korea.