헌법상 조세의 기본원칙과 세법상 실질과세

Abstract

In relation to taxation, the Constitution stipulates the principles of no taxation without law and tax equalitarianism. the principles of no taxation without law is that tax burdens, which are not based on law, is illegal. However, in modern society, it is almost impossible to anticipate and legislate all the situations related to tax burden, as new transactions are constantly occurring. In this regard, it is pointed out that excessive demand for the principles of no taxation without law would result in not bearing tax burden despite having taxpaying ability, which would result in opposition to tax equalitarianism. When considering tax equalitarianism, a taxpayer should bear tax is not limited to the form of a transaction, but it is judged by the substance of the transaction act. And in that case, substance over form is referred to in tax law. This thesis conducted a comparative legal review of the substance over form on the legal system of Korea and Japan. And it looks at the German system in relation to the German tax law in Japan's legislative history. As a result of this paper, the confrontation between the legal and economic substantive theories about the meaning of substance over form under the tax law arises depending on whether the tax law will accept the private law's recognition of facts in the application of the tax law. And there is a GAAR related to substance over form in Korea, it is based on the understanding that recognition of tax law can be done separately from private law's one in the end. However, there is criticism that the application of these regulations harms taxpayers' predictability and legal stability, and in this regard, Japan does not have a GAAR, which applies the tax law to private law's recognition unless otherwise provided. In order to achieve tax equalitarianism while ensuring the predictability and legal stability of taxpayers, it is necessary to stipulate in the statute so that taxpayers can know when new cases arise. In other words, tax equalitarianism works as a legislative principle of the tax law, and this notion of fairness should be reflected in tax legalism and legislation should be carried out. In order for tax equalitarianism and no taxation without law to be in a complementary relationship rather than a conflict, tax equalitarianism must function as a content of tax legalism. Despite not standing in this logic and having no regulation in tax law, admitting taxation while discussing tax equalitarianism is based on a conflict between the two principles, and in this case, it is logically contradictory to say that there is no conflict between the two principles. No taxation without law and tax equalitarianism can be viewed as non-conflicting relationships to ensure the property rights of taxpayers from arbitrary taxation by tax authorities or the judiciary. If a new trading relationship occurs, it should always be noted that taxation on the basis of fairness is not taxation under law, but taxation on ideology, and the work of legislating new laws should be continued.