상속세 및 증여세의 완전포괄주의 도입방안에 관한 연구

Abstract

This report studies the law reform measures for prohibiting the transfer of gigantic wealth from the super-riches to their offsprings without paying inheritance or gift taxes. As declared by the Constitutional Court of Korea, “the inheritance tax, on top of its primary purpose of financing the government, aims at ameliorating an eternal inheritance and concentration of wealth and enhancing economic equality of the people, in furtherance of the constitutional ideal of social market economy, which admits to an expansive control and regulation by the government for the purpose of realizing social justice and economic democracy.” The inheritance tax so understood necessarily requires a complementary system of gift tax. Without gift tax, inheritance tax can be easily avoided by an inter vivos transfer. Given that the inheritance and gift taxation is intended to tax the free transfer of wealth to the offsprings, the tax must apply regardless of the private law formality of the transfer. In reality, Korean law of inheritance and gift taxation has largely permitted the rich to transfer their wealth without paying taxes. It thus became a controversial social and political problem. A number of taxpayers, who have the economic resources and political powers to take advantage of the loopholes of the existing law, have transferred their wealth without paying taxes by means of corporate transactions and other abusive measures. This study clarifies the genesis of the legal loophole, and identifies the necessary reform measures to close it. Chapter I of the work discusses the necessity of a comprehensive concept of gift taxation, by reviewing the history of how Korean inheritance and gift tax rules came to suffer from the loopholes. Chapter 2 shows the basic framework for amending the current law, first by reviewing the case law of the Constitutional Court on the legislative discretion, and second by reviewing the specifics of foreign constitutional and tax law and finding out possible choices of the comprehensive tax system. Based on these findings, chapter 3 proposes draft languages of the amendment to the Inheritance and Gift Tax Act. Chapter 4 reviews constitutionality of the proposed amendment.