재산권 보장과 조세법

김영심(Young-Sim Kim),박정우(Jeong-Woo Park) 한국비교사법학회 2011 比較私法 Vol.18 No.1

This thesis conducts analysis review which value does the Constitutional Court aim for related to the taxation law and what kind of differentiated characteristic does it have when compared to violation judgment standards of general law. Moreover, assuming that existing violation judgment standards are continuously applied, the study considered what the countermeasures for the problems that may occur in future are. When looking at the analysis of decision examples in the Constitutional Court mainly, asset guarantee rule, proportion rule, and social market economic order rule can be considered as the common violation judgment standards that is based on constitution general principle and can be accepted as general principle of taxation law. Related to each violation judgment standard above, the writer proposed followings through this thesis. First, related to the constitutional limit of taxation right, the Constitutional Court are not able to provide more persuasive judgment standards other than principle of excessive prohibition. But, concerning about how much constitutional maximum of assets, which tax cannot violate, is must be preceded firstly when a nation and individuals are distributing fault from individual economic activity in order to define how much maximum tax rate is without annihilating individual economic desire. In other words, the Constitutional Court defines violation judgment according to each specific issue defining asset limitations related to property limitations of tax rights. Second, proportion principle which is acknowledged by the Constitutional Court is legitimacy of purpose, propriety of measure, minimum of damage, and benefit and protection of the law balance. This is only including regular judgment standards as judgment standard of the Constitutional Court. It actually does not provide clear judgment standards. Moreover, review on so-called constitutional limitations of political tax regarding ‘legitimacy of purpose’ requirement is necessary. Third, the writer raised questions while analyzing result examples of Constitutional Court related to tax law from the worry that overturning phenomenon, which has reversed principle and exemption related to our constitutional economic order known as ‘social market economic order’, may occur through the Constitutional Court decision examples with emphasized ‘social’ aspect of social policy purpose rather than economic principle, which is a ‘market economic’. This is not irrelevant to the Constitutional Court’s opinion that easily acknowledges proper law’s ‘propriety of purpose’.

오늘날 세법적 관점에서 본 대동법의 재해석

김영심 ( Young Sim Kim ) 연세대학교 법학연구원 2013 法學硏究 Vol.23 No.1

대동법의 큰 원칙은 조선사회의 현실을 인정하고, 그것을 바람직한 방향으로 제도화한 것이었다. 종래 백성들로부터 대가 없이 수취하던 각종 항목들을 대동미로 흡수시킴으로써, 이들 항목들을 중앙정부 차원에서 관리할 수 있는 근거와 기준이 제도적으로 마련되었다는데 그 의의가 있다. 즉, 대동법은 각종 토산물 대신 쌀로 통일하여 징수했고, 과세의 기준도 종래의 가호(家戶) 단위에서 토지의 결(結)수로 바뀌었는바, 이는 담세능력에 따른 과세로의 제도적 전환으로 평가될 수 있고, 이로 인해 국가는 보다 넓은 세원(稅源)을 확보할 수 있었고, 백성의 세부담은 감소되었다. 물론, 토지(田結)에 대한 과세가 소득에 대한 과세인지, 재산에 대한 과세인지 여부는 불명확하지만, 매해의 소득 작황과 풍년 흉년 여부에 따라 과세하였다는 점에서, 일단은 소득에 대한 과세에 가까운 것으로 생각된다. 또한, 그 과세기준인 결(結)의 의미가 단일한 면적 기준이 아니라 일정량의 수확을 거둘 수 있는 양적 의미에 따라 그 면적이 단계별로 달라지는 점에서 볼 때, 오늘날 누진세적 소득구조의 기초가 되는 일종의 비례세적 개념이 도입되어 수평적 형평성을 도모하고자 한 것으로 평가할 수 있을 것이다. 그리고, 대동법이라는 세제로 인해 국민의 조세납부방법은 더욱 편리해졌다. 또한 그로 인해 유발된 방납으로 인한 지하경제규모의 축소와 공인의 상업자본가로의 성장 및 수공업자의 상품생산업자로의 변신은 조선 후기 상품 화폐경제의 발달과정에서 나타나는 상업 자본주의의 초기 모습을 갖추게 되었는바, 따라서 대동법은 정부가 필요로 하는 재원을 충분히 조달하면서 경제의 효율성과 공평성을 잘 조화시킨 효율적(중립적) 조세제도라고 할 수 있겠다. 나아가, 대동법은 대동사목(大同事目)이라는 세법 운영규정을 두고, 선혜청(宣惠廳)이라는 조세 전담기구를 두어 조세법 전문 공무원이 양입위출(量入爲出)이라는 예산제도에 따라 국가기관과 각 지방자치단체의 재정운영을 하도록 제도화하였는바, 비록 봉건적, 중세적 국가지배체제인 당시의 정치제도와 경제제도의 한계를 넘어서기 힘들고, 세제만 따로 가서 성공할 수는 없기에 유교적 군주사회로서의 제도적 한계를 인정한다 하더라도, 세제사적으로 볼 때 조세법률주의 원칙의 토대가 된 것으로서의 대동법의 의의는 충분히 인정할 만한 것이라 생각한다. The overarching principle behind the Dae-Dong Reform was to recognize the political and economic realities of the Chosun Society, and to systemize them in an appropriate way. In short, through Dae-Dong Reform: rice was collected as a standard form of tax, in place of regional delicacies; and tax was levied based on the land`s production, in place of family unit as a standard of tax collection. This was the systemic turning-point, in which tax was levied based on tax-paying ability. Through such, the state was able to secure a larger source of taxation, the general public had less tax burden, and the general public`s tax payment [method] became more convenient. At the same time, Dae-Dong Reform reduced the scale of underground economy (intermediary exploitation), and enabled the grow of commercial capitalists and producers. Furthermore, Dae-Dong Reform systemized the financial management through its regulation on managing the tax law - called Dae-Dong-Sa-Mok- and by establishing a dedicated agency for taxation, Sun-Hye-Chung.

유류분반환청구권 관련 소고(小考)

김영심(Young-Sim Kim) 서강대학교 법학연구소 2008 서강법학 Vol.10 No.2

주식명의신탁 과세연구 : 외국의 입법례와 문제점 중심

김영심(Young-Sim Kim) 한국비교사법학회 2008 비교사법 Vol.15 No.4

In light of existing customary taxing practices and court rulings, the gift tax imposed by regulations concerning legal fiction in donation of title trust in accordance with Inheritance and Gift Tax Act carries the connotation of ""sanctions"" or ""penalty"" rather than actual ""tax"" In general, the fundamental purpose of tax is in meeting the fiscal need of the national government and local autonomous government agencies, but another leg of its purpose is the function as a political and policy decision tool by the national government. However, if this function of taxation as a political or policy tool is over-used, citizens' perception on government tax will sour with defiance, which would result in failing to serve its original purpose the law makers intended. Therefore, even if taxes are used as a for policy purposes, it should not go beyond its inherent limits and also should not be at odds with constitutional principles. In this sense, previous customary practices on taxation and court rulings concerning the title trusting of stocks are rather inappropriate as in taxing the ""trustee"" who simply lent his/her title although the possible to be blamed is the title ""trusting"" party. Furthermore, any probability of evasion of tax was regarded as intent to evade taxing, as a result even the title trust without the intention of tax evasion was not acknowledged. Therefore, if it is necessary to sanction the title trusting of stocks, it would be more appropriate and fair to impose additional tax or penalties through separate laws rather than making a ligal fiction as a gift.

세법상 출자자의 제2차 납세의무 관련 문제연구

김영심 ( Young Sim Kim ) 연세대학교 법학연구원 2011 法學硏究 Vol.21 No.1

Efficacy of the regulations on Secondary Liability for Tax Payment of Contributors under the current Basic Law for National Tax is deteriorating, as oligopolistic stockholders, who are familiar with the regulation, borrow titles in order to divert it. This paper aims to propose the following improvement measures that will prevent unjust encroachment of property rights of a taxpayer, while giving all due respect to the legislative intent of Secondary Liability for Tax Payment of Contributors. First, the application of Secondary Tax Liability of Contributors will be limited in scope. In short, only to the extent that a corporation illegally binds the income, which should be bound to oneself, to oligopolistic stockholder (among others), the person, to whom the profit is being distributed, will be obligated with Secondary Liability for Tax Payment of Contributors to the extent of the amount of profit distributed. Secondly, the current Secondary Liability for Tax Payment of Contributors will need to be amended from hypothetical regulation to presumptive regulation. Third, there is a need for a separate sanction measures for regulating distribution of stock, manipulation by the owneer, embezzlement of title, etc. Fourth, in case shortage occurs in national tax, as the result of the contributor concealing, distributing, leading or moving a property, the concealed property of the corporation will be returned to under the corporation`s title by utilizing Obligee`s Right of Revocation under National Tax Collection Act. Fifth, the scope of application of Secondary Liability for Tax Payment of Contributors should be extended to all corporations, including those listed above. Finally, trustee should be regulated through Secondary Liability for Tax Payment of Contributors regarding taxes that has not been paid by the truster, to the extent of the value of the trusted property. There are many cases, in which trusteeship is abused as a means to avoid tax payment.

무역위원회의 판정에 대한 사법심사 가능성 소고

김영심(Kim Young Sim) 행정법이론실무학회 2007 행정법연구 Vol.- No.18

The Seoul Administrative Court has recently held on August 14, 2007 in case 2007 Gu-Hap 825 that “although it must be acknowledged that an unfair trade practices rejection decision of the Korea Trade Commission has distinctiveness from a judicial review perspective in that it is a specialist policy decision based upon broad discretion, the rejection decision amounts to administrative disposition subject to appeal litigation to the extent that a total exclusion from judicial review would result in the neglect of the courts of their obligation to guarantee the lawfulness of and appropriateness in terms of objectives of administrative dispositions.” The judicial precedents have narrowly interpreted the concept of “dispositions” which are subject to appeal litigation as ‘conduct of administrative agencies pursuant to public law which causes direct legal changes to the legal position of the public.’ The judgment of the Seoul Administrative Court mentioned above however interprets the term “disposition” which is prescribed in Subsection I of Section I of Article 2 of the Administrative Litigation Act as judicial review of administrative action from a functional point of view and thus shows an attempt to expand the scope of appeal cases. The recent broad interpretation of administrative dispositions by the courts, the inclusion by the Administrative Litigation Act revised bill recently drafted by the Supreme Court of not only dispositions, as such term is defined in its narrowest sense, but also the conduct of entities in authority, statutes and regulations, and other controversial matters as cases subject to appeal litigation, and other developments correspond to the trend of expanding the scope of available remedies and strengthening the guarantee of lawfulness of administrative action resulting from regarding cases for appeal litigation as including the gradually diversifying types of administrative conduct. Thus, such developments can contribute to the expansion of such available remedies and to the lawful execution of administrative action. This is a significant point. However, it seems that whether or not the statement from the judgment of the Seoul Administrative Court mentioned above that unfair trade practices rejection decisions of the Korea Trade Commission can be objected to through administrative litigation will lead to courts determining that accused parties have the right to object through administrative litigation to unfair trade practices “confirmation decisions” and “dumping confirmation” decisions will now become an issue of interest.

조세법상의 사기 기타 부정한 행위 관련 소고(小考)

김영심 ( Young Sim Kim ) 연세대학교 법학연구원 2009 法學硏究 Vol.19 No.1

The Framework Act on National Taxes and the Punishment of Tax Evaders Act, which are both part of our tax laws, both use the phrase fraud and other illegal activities, but fail to define the phrase. With regard to the conditions needed for the evasion of taxes under the Punishment of Tax Evaders Act, the judicial precedent generally requires for the tax payer to actively manipulate the documents on purpose in order for the act to constitute as fraud and other illegal activities. Therefore, if fraud and other illegal activities under the Framework Act on National Taxes were to be defined identically as fraud and other illegal activities under the Punishment of Tax Evaders Act, then it is inevitable to run counter to the equity with regards to the national tax imposition exclusion period. This is due to the fact that national tax imposition exclusion period of 5 years could be applied even to cases of false declaration in comparison with 7 years of exclusion period for not declaring at all. Even though the word fraud is used in both civil and criminal laws, it is used broadly in civil law and narrowly in criminal law. Therefore, there is also a need to differently define and manage the phrase fraud and other illegal activities in the Framework Act on National Taxes and in the Punishment of Tax Evaders Act. I would like to propose that for evasion of taxes under the Punishment of Tax Evaders Act, the concept and the range covered by fraud and other illegal activities must be more clearly and concretely defined. this is to allow for legal control in case of intentional crimes and to impose fines for negligence in case of accidental crimes. Additionally, if the phrase is differentiated as proposed, fraud and other illegal activities that set the standards for the national tax imposition exclusion period under the Framework Act on National Taxes, should be understood as a broad concept that cover the entire spectrum from the intentional crimes to accidental crimes.

귀추적 사고를 경험한 과학 교사들의 중학교 1학년 빛 단원 지도 방식에 대한 인식의 변화

김영심 ( Young Sim Kim ),백성혜 ( Seoung Hey Paik ) 한국과학교육학회 2008 한국과학교육학회지 Vol.28 No.6

2002년 소득세법 판례회고

金英心(Young Sim Kim) 한국세법학회 2003 조세법연구 Vol.9 No.1

제일한국인에 대한 접근 혹은 일탈 - < 달은 어디에 떠 있는가 > 와 < 가족시네마 > 를 중심으로 -

김영심(Young Sim Kim) 문학과영상학회 2000 문학과영상 Vol.1 No.2

The purpose of this article is to show that the cognitive activities of the film spectators are not passive, but rather form an active and complicated process, in which the spectators participate actively in the procedure of the sense- making about what they see on the screen. The theoretical arguments for it rely on so called cognitive theories, which are investigated by diverse fields of science like cognitive psychology, neurology, linguistic, information science, artificial intelligence, communication theory etc. These different fields of science share the very common point of view that the human cognitive activities are not just a mechanical response to the environment stimuli, but a constructive process, which consists of activities like dividing a part from the whole, throwing the unnecessary ones, adding, replacing and compounding parts. This process is driven by schemata, which as a lump of organized knowledge are not fixed, but dynamic and differ from one individual, nation and culture to the other. Thus the human cognitive activities become an ongoing process. Applied to the film theories this means that the film text in itself is incomplete, which should be filled up through the cognitive activities of the spectators. To these basic spectatorial activities belong the basic assumption, inferences, memory and hypothesizing about that shown in a film. From this point of view a narrative film can be regarded as a process, which engages diverse devices to lead the spectators to a successful reconstruction of the story. In order to analyze this process categories like narrative logic, time and space are applied. These are the basic categories of human cognition which can be divided into several sub-categories such as causation and parallelism by logic, order, frequency, duration by time and so forth. In a text such aspects are organized by the narrative tactics, which mean how the representation of the story is managed in it. The narrative tactics can be well observed and explained with the categories of gap, retardation and redundancy, which in turns are subordinated to the overall narrative strategy that can be described with categories like knowledge, self-consciousness and communicativeness. The detailed and concrete Analysis of the TV-spot Love will move using the narrative model derived from the cognitive film theory has shown that even through an ordinary spot which is routinely consumed by spectators the human cognitive activities include a very complicated process, which in this case largely depends on the well known schemata of the targeted young generation. This analysis lead me to the conclusion that the spectators are not fastened in their seats and receive the massage of the film passively, but they instead construct the filmic meanings activity on the basis of their own experiences and knowledge. Choi Yang Il`s Where does the moon rise in the sky, which filmed Yang Seock Il`s novel Taxi Rhapsody and Park Chul Soo`s Family Cinema, which filmed Yu Mi Ri`s novel Family Cinema, approached to the problems of the Korean in Japan from respectively different aspects. Whereas the protagonist of Taxi Rhapsody heavily dealt with the agony of identity the Korean in Japan should feel, the film Where does the moon rise in the sky is reproduced as an individual`s love story, who constitutes the Japanese society apart from the problem of identity. On the other hand, the film Family Cinema so purposefully inserted a depiction about the Koreans in Japan which Yu Mi Ri excluded that it insignificantly allowed the problem of Korean Japan to emerge to the surface. When producing the novel which depicted the Korean in Japan into a film, the more diverse methods are, of course, better, but it is more important to properly understand the context including the original author and the Koreans in Japan than anything else, because the film does not exist as what it is, rather as a representation of the Koreans in Japan