명의신탁 증여의제 과세에 대한 연구 = A Study on the Taxation of Constructive Gift for Nominal Trust

다국어 초록 (Multilingual Abstract)

Nominal trust system appeared when Japan introduced the real estate registration system during the Japanese occupation. However, even after the existing civil law became effective, the Supreme Court has approved of its validity continuously through legal precedents, based on the principle of unofficial autonomy. This system is aunique system of Korea, which cannot be found in other countries. The reason why this system has been formed and developed through concrete precedents until now is the social needs at that time. However, the fact that nominal trust system is being used illegally for means of tax evasion, speculation, and illegal concealment of properties is unavoidable. To prevent this use, real estate real name law was enacted in July 1st 1995 to prohibit nominal trust in real estate field. Also, for the stocks, the law of inheritance tax and gift tax has the regulation of taxation of constructive gift for nominal trust, which imposes gift tax on them. While the tax authorities made amendments of the regulation nine times and levied gift tax for nominal gift, there have been changes in precedents of the Supreme Court and four decisions of the Constitutional Court. Despite this fact, majority of the taxpayers taxed because of this regulation are not convinced, and they file suits for a different decision. This shows that the regulation of taxation of constructive gift for nominal trust is a controversial system. Theoretically, regulation of taxation of constructive gift for nominal trust has flaws regarding aspects of ability to pay tax, intention of tax evasion, qualification of being a plaintiff in appeal suit, principle of no taxation without law, principle of anti-over taxation, substantial taxation, consistency with other items of taxation, equality with real estate nominal trust, etc. However, the tax authorities giving up nominal trust regulation by simply abrogating its regulations is difficult to happen, considering the followings. First, the reason why the tax authorities are trying to control nominal trust and leading the real name act is to prevent tax evasion and achieve social justice by achieving justice in taxation first, and the tax authorities have enacted real estate real name law and finance real name law for this purpose. Secondly, although nominal trust has been used consistently to avoid other laws, related laws apply no sanctions to illegal acts using nominal trust. Considering these aspects, plans that can be in equal level of regulation of taxation of constructive gift for nominal trust such as establishing special regulations, improving the statutory time limitation for levying national tax, and applying sanctions through tax crime punishment law can be suggested as ways to improvement. If there are difficulties in applying these plans, and it is necessary to maintain the existing regulations, legislative plans such as switching the person who has liability for the gift tax, improving the extent of intention of tax evasion, giving chances to explain the nonexistence of intention of tax evasion, and permitting gift tax deduction can be suggested.