재산권 보장과 조세법 - 헌법재판소의 위헌심사기준을 중심으로 -

Abstract

This thesis conducts analysis review which value does the Constitutional Court aim for related to the taxation law and what kind of differentiated characteristic does it have when compared to violation judgment standards of general law. Moreover, assuming that existing violation judgment standards are continuously applied, the study considered what the countermeasures for the problems that may occur in future are. When looking at the analysis of decision examples in the Constitutional Court mainly, asset guarantee rule, proportion rule, and social market economic order rule can be considered as the common violation judgment standards that is based on constitution general principle and can be accepted as general principle of taxation law. Related to each violation judgment standard above, the writer proposed followings through this thesis. First, related to the constitutional limit of taxation right, the Constitutional Court are not able to provide more persuasive judgment standards other than principle of excessive prohibition. But, concerning about how much constitutional maximum of assets, which tax cannot violate, is must be preceded firstly when a nation and individuals are distributing fault from individual economic activity in order to define how much maximum tax rate is without annihilating individual economic desire. In other words, the Constitutional Court defines violation judgment according to each specific issue defining asset limitations related to property limitations of tax rights. Second, proportion principle which is acknowledged by the Constitutional Court is legitimacy of purpose, propriety of measure, minimum of damage, and benefit and protection of the law balance. This is only including regular judgment standards as judgment standard of the Constitutional Court. It actually does not provide clear judgment standards. Moreover, review on so-called constitutional limitations of political tax regarding ‘legitimacy of purpose’ requirement is necessary. Third, the writer raised questions while analyzing result examples of Constitutional Court related to tax law from the worry that overturning phenomenon,which has reversed principle and exemption related to our constitutional economic order known as ‘social market economic order’, may occur through the Constitutional Court decision examples with emphasized ‘social’ aspect of social policy purpose rather than economic principle, which is a ‘market economic’. This is not irrelevant to the Constitutional Court’s opinion that easily acknowledges proper law’s ‘propriety of purpose’.