소득세법 시행령 제16조 제1항의 위헌성연구 - 국외근로자의 비과세 급여의 범위와 관련하여 - = A Study on the Unconstitutionality of Article 16 (1) of the Enforcement Decree of the Income Tax Act - In connection with the scope of non-taxable wages for workers abroad -

다국어 초록 (Multilingual Abstract)

Article 11(1) of the Constitution of the Republic of Korea, ‘All citizens shall be equal before the law,’ guarantees the general principle of equality. The criteria for the scrutiny of unconstitutionality in regard to the constitutional right to equality apply the principle of arbitrariness prohibition and the principle of proportionality. The principle of equality in taxation is a principle to realize tax justice by embodying the constitutional provision of the right to equality in the tax act. This study looked into the criteria for the scrutiny of unconstitutionality in regard to the right to equality and the principle of equality in taxation, examined whether discriminatory treatment in the scope of non-taxable wages for workers abroad is justifiable, and analyzed whether the discriminatory treatment violates the constitutional principle of equality. The workers abroad include general workers working on overseas land, maritime workers on a pelagic fishing vessel or a vessel serving an overseas route, and workers providing labor in an aircraft serving an overseas route. The scope of non-taxable wages for workers abroad is based on Article 12 (Non-Taxable Income) of the Income Tax. The scope is prescribed by Article 16 (1) 1 (Scope of Non-Taxable Wages for Workers Abroad) of the Enforcement Decree of the Income Tax, which is a Presidential decree, and has been applied in the same way for a period of 30 years from 1976 when the provision was newly established to 2006. At present, however, there is discriminatory treatment in the scope of non-taxable wages, considering that of KRW 3 million per month for overseas construction workers and workers on pelagic fishing vessels or vessels serving overseas routes, which is three times as large as that of KRW 1 million per month for general workers abroad and workers on aircraft serving overseas routes. The reasons for the revision of the act were the switch of overseas employment to high income professions, the poor working environment of overseas remote-area construction, and support to construction workers’ overseas employment.
As a result of the examination of this study, it was found that such discriminatory treatment could be in violation of the principle of arbitrariness prohibition for the right to equality, to the effect that the essentially same things should not be treated with discrimination. As for the appropriateness of discriminatory treatment, although there is some justifiability of the legislation purpose to be achieved through the discriminatory treatment, such as the procedure for the revision of the enforcement decree and support to construction workers’ overseas employment, the necessity for discriminatory treatment seems not very great because the legislation purpose is not necessarily achieved only through the discriminatory treatment. In addition, to compare working environment, wages, and manpower supply &demand among occupational categories, the discriminatory treatment in the scope of non-taxable wages for overseas construction workers and workers on pelagic fishing vessels or vessels serving overseas routes, which is three times as large as that of the others, might create a problem in terms of the balance of legal interests Thus, it seems that the discriminatory treatment could be in violation of the principle of proportionality, a criterion for the scrutiny of unconstitutionality in regard to the right to equality.
Therefore, it is judged that it is difficult to find any reasonable reason for justifying the discriminatory treatment in the revision of Article 16(1)1 of the Enforcement Decree of Income Act, and that the revision is opposed to the principle of arbitrariness prohibition and the principle of proportionality for the constitutional right to equality, and is subject to the restriction of the principle of equality in taxation. It is believed that it is necessary to improve such a problem of discriminatory treatment, thereby solving the problem of non-constitutionality in connection with the principle of equality in taxation and implementing the principle of equality, the basic spirit of our constitution.

참고문헌 (Reference)

1 한상운, "현행 헌법상 평등심사기준에 관한 연구 - 헌법재판소 판례를 중심으로 -" 법학연구원 20 (20): 65-88, 2008

2 육윤복, "현행 세법의 공평과세 위반에 관한 연구" 법학연구소 13 (13): 41-72, 2012

3 성낙인, "헌법학" 법문사 2015

4 한수웅, "헌법학" 법문사 2011

5 김은철, "헌법상 평등심사기준에 관한 연구 - 미 연방대법원과 한국의 헌법재판소를 중심으로 -" 미국헌법학회 26 (26): 167-189, 2015

6 방승주, "헌법과 조세정의" 한국헌법학회 15 (15): 1-41, 2009

7 김주형, "해외건설인력 수요예측 및 공급방안 연구" 국토해양부 2013

8 김종성, "해외건설 전문 인력양성을 위한 제언" 64 (64): 2016

9 임종수, "평등원칙과 평등심사에 관한 연구" 한려대학교 2016

10 손상식, "평등권 심사기준의 침해 여부에 대한 심사기준" 헌법재판소 헌법재판연구원 2013

11 김유찬, "주요국의 조세제도-독일 편" 한국조세연구원 2009

12 이전오, "조세입법절차 문제점 및 개선방안에 관한 연구" 국회예산정책처 2009

13 양충모, "조세입법에 대한 사법심사원리로서 비례원칙의 한계" 한국공법학회 38 (38): 183-201, 2010

14 임승순, "조세법" 박영사 2018

15 박훈, "우리나라 헌법상 조세 평등에 대한 해석" 2 (2): 2006

16 조영식, "실질과세원칙의 헌법적 고찰" 헌법재판소 21 : 2010

17 김유향, "기본강의 헌법" 우리법학연구소 2018

18 이기일, "국외근로자 비과세제도 개선방안 연구 : 국제선항공승무원을 중심으로" 한국항공운항학회 23 (23): 42-52, 2015

19 최진호, "국내항공조종인력양성사업 정책현황 및 성과" (60) : 2013

20 日本の所得税法, "所得税法施行令 “非課税とされる在外手当”" 日本の電子政府 2018

21 Internal Revenue Service, "Treasury Regulation"

22 J.K. Lasser Institute, "J.K. Lasser’s Your Income Tax 2016" WILEY 2016

23 Eastman CI, "How To Travel the World Without Jet lag" 4 (4): 2009

24 Sarah McCooey, "Female Cabin Crew Radiation Exposure and Cancer Development: A Cross-Study Inquiry" 9 (9): 2017

25 Jerome a Barron, "Constitutional Law 4th edition" West Publishing Co 1999

26 Finance Act, "Chapter3, PART 1 “Income tax and corporation tax: charge”,7, Deductions from seafarers’ earnings"

27 Einkommensteuergesetz, "Bundesministerium der Justiz und für Verbraucherschutz"