租稅法上 準據槪念의 私法關聯性에 관한 硏究 = (A)study on the private law pursuant to the concept of taxes

국문 초록 (Abstract)

영문초록: In such a sense, people take for granted that one should know what tax liabilities would arise out of one's behavior, and also it suggests a sense that legal security and potential forecast should be guaranteed in relation with tax effect, which arises from various economic deals in a intricate economic society. Tax liabilities, unlike general public law, its liabilities get materialized in tax law under a certain condition without intervention of government power, and it stipulates that one should follow the decision of tax liabilities by tax office or people's report by themselves. it is needless to say that tax law, the origin of tax liabilities, needs more legal security and potential forecast. It can be said that one factor making such a legal security and potential forecast difficult attributes that contemporary tax law relies the recognition of its tax source on the power shift of civil law.Nonetheless, it remains as yet that there is a notion to consider theory of the administrative law as applicable as it is categorizing the tax law as one of the administrative law. Assuming that process of historical development is one that people struggle to keep their lives and property out of the state power, it can be said that protection of life and body out of the state law is an ideology of the principle of legality, and that protection of property out of the state law is an ideology of the principle of tax legality.It is called that the Contemporary Capitalistic State as Steuerstaart. It places emphasis that the national finance gets public fiance, so center of the national revenue is tax. Coming to the French Revolution, 1789, the national sovereignty was materialized in relation to tax saying that “any tax can be levied without people's consent”. It is very emergence of the principle of tax legality, that is, all the tax need people's consent. I presume that lots of studies and arrangement as to the principle of legality are achieved, however, nothing rivaled as to the principle of tax legality in its studies. Firstly, in order to understand characteristics of today's tax, let's study as to the legal concept in chapter 2, and let's grasp economic foundation that can be said the basis of tax sources by the time, as to the time from when tax concept was applied in a long history of mankind. And let's look into the meaning, peculiarity, and characteristics of tax state, etc, which is emerged in a period of transition from the feudal ages to the modern ages, and let's go over necessity of possible legal problems of tax liabilities, which definitely arises out of difference of tax sources by the time. And then let's examine actual gists of tax requisite legality and tax requisite definiteness as contents of the principle of tax legality, contemporary tax expression, which gets to pay the price for citizen's freedom won through the French Revolution. Along with it, when it comes to interpretation of makings of tax law, in order to recognize necessity of civil law, in especial, quotation of civil law and to provide potential forecast for smooth fulfillment of tax liabilities, let's grasp characteristics of the modern tax related to the civil law deducing possible problems related to phraseologies of civil law which is intrinsic in the tax law. Chapter 3 explains that legal relation of the private law is in principle constituted by the legal acts, while that of the tax law is constituted without exception by legal stipulations. Tax liabilities constituted by such stipulations is called the creature of tax stature in the tax law, and both theories of the tax power and tax liability concerning the legal peculiarities of tax legal relations. It explains as to background and peculiarities, and its differences, of the tax liability relation theory as currently common theory, and also dealt with constitution of the tax liabilities by legal stipulations in the process of fulfilling liabilities and relations between current tax system in which tax payer finalizes oneself and liability relation theory.Along with details of rights related to the exercise of correction claim rights after tax return and problems as to limitation of the correction claim rights in the period of paying value-added tax, it dealt with other opinions prevailing in the government authorities. It explains as to whether or not people overpays unduly beyond the range of one's liabilities to secure legal protection, in case that they ignorantly follow stipulations essential to factors in null and void. It also placed emphasis that the tax liabilities has a peculiarity in principle possible to restore to the original state unlike other administrative actions, and there is a way in the tax statute enabling to create independent theory of its own unlike that of the general administrative law. And it placed an emphasis that it should be realistically improved to meet the tax relation theory by applying the international priority rights of cases prevailing in the foreign countries such as the standard date and execution rights of its own in our country in future.Supposing that a factor to cause tax liabilities power shift of private law, the relations of tax law and private law is indispensable to each other, and to this let's go over controversies as to relations between the tax law and private law which was first debated in Germany in chapter 4, and let's go over the theory as to controversies as to whether it should be interpreted equally to the private law or separately from it, related to phraseologies of private law which should be used in the tax law, and then let's examine the relation to tax liability of the tax law by the looks of power shift, which becomes to come into being tax liabilities.And supposing that a fact to cause the legal effect of relation to the administrative law is a legal factor of the public law and a factor to constitute its legal factor is legal matter, the acts of the private law itself imposes burden of liabilities of the public law, tax liabilities, at this point it can be said that acts of the private law is included in the legal matter as a factor to be legal factor of the public law. Therefore, when legal factor and legal effect of the private law becomes effect of the public law, in the judgement as to whether it or not it meets tax factor chapter 4 placed an emphasis that legal factor and legal effect of the private law becomes the legal matter of the public law.Let's go over that capacity of enjoyment of rights, mental capacity, and legal capacity, the subject of expression of intentions, have an influence on the tax liabilities, and along with analysis on an influence that expression of intentions, an essential factor to the legal acts, have on the tax liabilities, and go over the legalized matters regarding an influence that legal acts have tax liabilities in light of the tax basic law of Germany, and then dealt that legal constitution of the civil law is denied in the tax law. Along with studies on relations of the time of transferring the real right by legal acts in relation to the time of transferring the real right, in especial, real estate and the time of supply and the time of transfer of the tax law, and dealt that concept of delivery, indication of occurrence of the tax law, has any relation to delivery of the civil law compared with details of the value-added tax law and the corporate tax, in the long run it dealt with a matter that necessity of possible forecast was emphasized in case that value-added tax are lots of frequencies of fulfilling tax liabilities compared with other items and judgement is necessary as to whether or not deals are done in each deals.Chapter 5 explains that, when there should be realistic appropriateness in both theory and practice, thus it should be improved to better way to meet the realistic legal factor of the private law. However, it's not possible to deal with all of the factors to constitute the tax liabilities and there is no other real profits as tax basis and tax rates is a peculiar notion in the tax statute. Thus, it dealt with the fundamental relation between taxpayers and taxable objects, taxable object of value-added tax, limited to the concept of transfer being scattered in each individual tax statute. Preceding reviews such constituting elements to be tax factor, it suggested criterion to review tax factors and elements to enfold in future, along with reviews on theory of ‘substance’, the hard core phraseology of the realistic tax policy whether it means legal substance or economic substance