과세처분 개념에 대한 비판적 고찰

Abstract

This study comprises a critical analysis on the concept and attributes of taxation disposition in tax litigation. In the study of public laws, taxation has been considered to contain the attributes of typical power relationship according to the tradition where it was viewed as a form of financial command by the King in a past police state. As a result, in theories and precedents, fixation decisions or correction decisions made by the tax authorities to specify tax liability stated under relevant laws were understood as administrative disposition by the exercise of public power, which is subject to revocation litigation under the Administrative Litigation Act. However, these decisions are difficult to be consistent with the definition of administrative disposition for the sake of study in that they themselves do not bring about direct changes to the specific rights and duties of the people. Despite that, in today’s theories and precedents, the structure of tax litigation is designed to conduct revocation litigation by categorizing decisions made by the tax authorities to fix tax liability under the definition of “taxation disposition.” This makes it possible to give rise to various and complicated theories about issues from the specification of taxation disposition subject to litigation relating to tax litigation and the type of litigation to the scope of a court’s judgment and the effects of verdicts. However, the essence of tax litigation is to ascertain the existence and scope of tax liability imposed on taxpayers according to tax laws and to determine the fair amount of tax in an objective manner. Therefore, it is more reasonable to settle the dispute regarding this issue through party proceedings because it is the matter of defining the legal relationship under public laws.