일본 조세법상 법인격부인 법리의 적용에 관한 소고

Abstract

In 1950, adoption of ‘disregard of the corporate personality’ was discussed in Japan. But, application of such a principle of law was so passive at that time. A lack of basis for recognizing the principle in the range of interpretation theory on positive law was one opinion. The other prevalent opinion was that there was a deep-rooted perception that there is no need to propound the principle because an established principle of law could solve legal disputes. In these circumstances, the Japanese Supreme Court’s verdict rendered on February 27, 1969 made this principle of law perceived as one of official law principles in Japanese law. The verdict officially declared recognition of the ‘disregard of the corporate personality’ principle. After then, an affirmative theory about the principle has become a mainstream theory, and courts made decisions based on the principle. The above principle of law is generally applied to Commercial Law and Corporation Law. However, where someone uses the legal form of corporation in Tax Law relation for economic purposes only, this principle of law can be applied in Tax Law for the reason that the legal form of corporation has to be denied when economic entities behind the corporate veil enjoy benefits by using the legal form of corporation. In Japan, although the principle of ‘disregard of the corporate personality’ can be applied in Tax Law, this principle is not used by taxpayers to avoid taxes. Also, there is no direct precedent that permits taxation based on the principle. And theories on this principle are divided into two: one is active theory which prescribes that the principle has to be counted as same foundation or same realization for Good Faith and Estoppel that are acknowledged as Rechtsquelle because those are inherent logics in Law, and the other is passive theory which prescribes that the principle must be analyzed passively because taxation exceeding the range of Tax Law Relation that exists in society is not allowed under the principle of no taxation without law. Thus, we can see that theories, application scope under case law and prerequisite for the principle of ‘disregard of the corporate personality’ are formed in Japanese Tax Law. Eventually, this is the way for realizing Fairness of Taxation by preventing abuse of corporation form as means of tax evasion. As Korea has not yet established theories or precedents concerning the principle in Tax Law, this is very suggestive for us.