現行綜合不動産稅課稅制度의 問題點과 改善方案

다국어 초록 (Multilingual Abstract)

The purpose of this study is to examine the problems regarding the current system of Comprehensive Real Estate Holding Tax, and present the improvement plans. The policy of real estate taxation has the three basic functions - distribution of resources, redistribution of income, and growth and stabilization of the economy - as other taxation systems do, but in a short run, it functions as a means of realizing the goal - restriction of the current real estate speculation and land price stabilization.
In the case of Korea, since the supply of land is limited compared to the demand, land prices have kept creasing; and thus in fact, land has been recognized as a means to gain more capital. Remedies of the government on land problems that started in 1960's have focused on temporary measures upon speculation in time, with no comprehensive, fundamental policy. To solve those problems, the Public Concept of Land Ownership was introduced, and some of them which were implemented in early 1990's include the Residential Land Ceiling System, contribution system for development, and Excess Vacant Land Taxes abolished by a decision of unconstitutionality of the Constitutional Court. The sensation of the apartment speculation that began in 1970's continued for years even up to the point of introducing the Public Concept of Land Ownership.
As various kinds of real estate taxation policies have been newly established, revised, and abolished by regimes and Participatory Government emerged, the comprehensive real estate holding tax law was introduced as the best possible real estate taxation policy. This law, established on Jan. 5, 2005, imposed comprehensive real estate holding tax on owners of high value real estates so as to reconsider the equality of tax burden on real estate possession, promote price stability of real estate, and thus contribute to sound development of the national economy and balanced growth of the local finance, but there have been various controversial issues in this regard. Some of the improvement plans for involved problems are as follows:
First, comprehensive real estate holding tax imposed to taxation subjects is a type of property tax on real estate owned. The central government's gaining the rights of taxation on real estate, which are the local governments' tax source, is an infringement of the right of self-government, and can make worse the poor local financial state.
As an improvement plan for this, the taxation on real estate in the scope of the wide-area unit of local government is to be taken care of by provinces as a concept of property tax, a part of wide-are local government tax so as to balance the finance among basic organizations, while the central government focuses on controlling financial imbalance among wide-area local governments.
Second, as to double taxation on goods subject to the same type of taxation, the local government imposes property tax on housing and land, and the government imposes comprehensive real estate holding tax on real estate over a certain amount, which results in double taxation. Since comprehensive real estate holding tax is imposed on real estate just as property tax, there is a possibility of double taxation.
Some might claim that this is not double taxation because the subject to impose the tax is the government and it is separated from property tax, but in consideration of the fact that the mayor and country chief are obligated to cooperate in the procedure, Minister of Public Administration and Security is to provide the data on taxation, and the whole amount of comprehensive real estate holding tax is granted to the local government, this is in fact a type of local tax. Thus, it would be proper to convert it to an official local tax or wide-area local government tax.
Third, there is a problem of summing up taxation for each household, a single man or woman who had his/her own house but did not need to pay comprehensive real estate holding tax is supposed to pay unitary tax after getting married, which may result in charging comprehensive real estate holding tax. Besides, this might be recognized as a type of penalty of marriage, which is a violation of the constitution Art. 36-1, stating that marriage and family life should be established and maintained based on dignity of a person and sexual equality and the government should ensure this. Besides, as this is a type of separation of goods according to the civil law, and violates the principle of equality stated in Art. 11-1 of the constitution, this can be regarded as unconstitutional. To prevent avoiding taxation, the unitary taxation for each household to realize taxes on property should be complemented in a way of death tax or gift tax. In addition, the unitary taxation for each household should be abolished to remove any risk of unconstitutionality, and instead replaced with the unitary taxation for each individual.
Fourth, the taxation on a household with one house is another problem. Households with one house are end-users, and rarely aim at speculation or property increase. In addition, it is unreasonable to impose taxes on households with one house only because the real estate price increased regardless of income.
As an improvement plan for this, as to those who have been unemployed for three or more years, those who retired, or 65 year old or older ones whose income is lower than the minimal wage according to the minimum wage law, the plan to deduct around 50% of the tax should be considered. In addition, long-term special deduction on households with one house should be provided and the system to deduct around 50% of the comprehensive real estate holding tax already paid for the last 5 years from the capital gains tax when they sell the house.
Fifth, the problem of taxation on profit not yet realized should be taken into consideration. Although comprehensive real estate holding tax is regarded as a tax on property, theoretically it has a problem since it is imposed on profit from owned real estate not yet realized. As to tax payers of a high amount, it might be controversial since the excessive tax rates might infringe of the right on the real estate.
As an improvement plan, a system to justly and accurately evaluate the benefits subject to taxation should be established, and as for the households with one house, the 4-step taxation system should be subdivided into 5 steps with tax rate reduction plans so as to minimize criticisms on taxation on profit not yet realized in accordance with the taxation equality and the ability-to-pay principle.
As examined above, comprehensive real estate holding tax was newly established focusing on restriction of real estate speculation, and thus various unintended problems have emerged from it such as taxation subject, double taxation, unitary taxation for each household, taxation on households with one house, taxation on profit not yet realized, violation of taxation equality and property guarantee principle, and the principle of prohibition of excessive restriction, which have resulted in various controversial issues. In short, as to comprehensive real estate holding tax, there should be a comprehensive revision of the law in a way that reduces the tax burden in accordance with the ability-to-pay principle in the short run so that the law-revision reflects tax-bearing capacity of tax payers. In the long run, rather than overly sticking to the goal of balanced development of the local finance, comprehensive real estate holding tax should be abolished, and local governments should have the right of taxation so that it can be established as a type of tax on property of the local government, which will contribute to the genuine improvement of the local finance and sound growth of the national economy. On Nov 13, 2008, the Constitutional Court pronounce the law-making goal and significance as constitutional as to the comprehensive real estate holding tax, which has been controversial a lot in society.
It stated that there was no problem of property tax, transfer tax, and double taxation, that it was not taxation on profit not yet realized, and that taxation by the government did not damage the nature of local government and administration right. However, the unitary tax on each household was decided as unconstitutional in line with the Constitutional Court's decision that the taxation on adding up income of a married couple was unconstitutional. In analysis of this decision, however, it would be more persuasive to have as the basis the principle of equality in Art. 11 of the constitution stating, "All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status." In fact, the unitary taxation for each household should be regarded as violating the broader concept of the principle of equality, rather than the principle of sexual equality in Art. 36-1 of the constitution, stating, "Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal."
Besides, the Constitutional Court pronounced that in the case of comprehensive real estate holding tax on houses, unconditionally applying of the high progressive tax rates compared to common property taxation and imposing of a large amount of comprehensive real estate holding tax without exception or adjustment for long-term owners of one house for the purpose of residence exceeds the scope of the policy goal, and that thus this infringement of property right of the house owner is in disagreement with the constitution.
Therefore, it is expected that in the near future, the National Assembly will amend some of the comprehensive real estate holding tax laws with the discussion on the revision between the Government party and the Opposition party in progress.

목차 (Table of Contents)

• 제1장 序論 1
• 제1절 硏究目的 1
• 제2절 硏究範圍 및 方法 3
• 제2장 不動産課稅의 理論과 現況 5
• 제1절 不動産課稅 理論 5
• 1. 租稅論 觀點 5
• 가. 아담 스미스의 租稅原則 5
• 나. 租稅의 定義 및 機能 8
• 다. 租稅의 效率性 12
• 라. 租稅의 公平性 13
• 마. 租稅論 觀點에서 본 綜合不動産稅 15
• 2. 法的 觀點 16
• 가. 租稅法律主義의 意義 및 沿革 16
• 나. 租稅法의 法源 18
• 다. 不動産 관련 法律에 의한 課稅效果 誘導 22
• 3. 租稅 公平負擔의 原則 23
• 가. 公評에 관한 觀點 24
• 나. 累進稅 26
• 다. 垂直的 公平과 水平的 公平 27
• 라. 租稅負擔公平의 觀點에서 본 綜合不動産稅 28
• 제2절 現行 不動産課稅의 現況 및 機能 28
• 1. 不動産課稅 現況 및 分析 28
• 2. 不動産課稅의 機能 37
• 가. 租稅의 衡平性 提高 37
• 나. 不動産 價格의 安定 38
• 다. 地方財政의 均衡發展 39
• 제3절 外國의 不動産課稅 立法例 39
• 1. 미국 40
• 2. 영국 42
• 3. 독일 45
• 4. 프랑스 47
• 5. 일본 50
• 6. 외국의 사례를 통한 시사점 54
• 제3장 現行 綜合不動産稅課稅制度의 槪要 58
• 제1절 綜合不動産稅의 意義와 沿革 58
• 1. 綜合不動産稅의 意義 58
• 2. 綜合不動産稅의 沿革 58
• 제2절 綜合不動産稅의 目的 60
• 1. 不動産 價格安定 60
• 가. 序言 60
• 나. 財産保有稅의 變遷過程 61
• 다. 不動産價格을 安定시키기 위한 諸般定策 63
• 라. 綜合不動産稅와 不動産價格安定 效果 69
• 2. 租稅負擔의 衡平性 提高 71
• 가. 應益性의 原則 71
• 나. 不動産課稅와 租稅의 衡平性 73
• 3. 不動産 保有에 따른 利益의 社會 還元 76
• 4. 貧弱한 地方財政에의 寄與 77
• 5. 國民經濟의 健全한 發展 79
• 제3절 綜合不動産稅 課稅體系 80
• 1. 綜合不動産稅의 槪念 80
• 가. 綜合不動産稅 導入背景 80
• 나. 綜合不動産稅의 槪念 81
• 2. 綜合不動産稅法상 課稅對象 82
• 가. 序言 82
• 나. 課稅基準日 및 納稅地, 課稅區分, 稅額 등 83
• 다. 住宅에 대한 課稅 84
• 라. 土地에 대한 課稅 87
• 3. 綜合不動産稅 課稅標準과 稅率 및 稅額 88
• 가. 住宅에 대한 課稅標準과 稅率 및 稅額 88
• 나. 住宅에 대한 稅負擔의 上限 90
• 다. 土地에 대한 課稅標準과 稅率 및 稅額 90
• 라. 土地에 대한 稅負擔의 上限 93
• 4. 綜合不動産稅 課稅方法 94
• 가. 賦課, 徵收 등 94
• 나. 決定과 更正 95
• 다. 加算稅 96
• 라. 物納 및 分納 96
• 마. 補則 97
• 제4장 綜合不動産稅의 問題點과 改善方案 100
• 제1절 課稅主體의 正當性 100
• 1. 課稅主體의 問題點 100
• 가. 國家課稅說 101
• 나. 國家課稅不要說 102
• 다. 憲法裁判所 意見 102
• 2. 課稅主體의 改善方案 105
• 제2절 二重課稅 與否 111
• 1. 二重課稅의 問題點 111
• 가. 二重課稅가 아니라는 見解 111
• 나. 二重課稅라는 見解 113
• 다. 憲法裁判所 意見 114
• 2. 二重課稅 問題點에 대한 改善方案 114
• 제3절 世帶別 合算課稅 118
• 1. 世帶別合算課稅의 問題點 118
• 가. 世帶別 合算課稅內容 118
• 나. 合憲論 120
• 다. 違憲論 123
• 라. 夫婦 및 世帶別 合算課稅와 公平性 129
• 2. 世帶別 合算課稅의 改善方案 134
• 제4절 1世帶 1住宅에 대한 課稅 139
• 1. 問題點 139
• 가. 用語定義 139
• 나. 課稅現況 140
• 다. 稅負擔緩和說 142
• 라. 稅負擔 緩和 不要說 142
• 마. 憲法裁判所 意見 142
• 2. 1世帶 1住宅에 대한 課稅의 改善方案 147
• 제5절 未實現利益에 대한 課稅 151
• 1. 問題點 151
• 가. 未實現利益에 대한 課稅가 아니라는 見解 151
• 나. 未實現利益에 대한 課稅 라는 見解 152
• 다. 憲法裁判所의 見解 153
• 2. 未實現利益에 대한 課稅의 改善方案 153
• 제6절 基本權 侵害 관련 憲法裁判所 意見 162
• 1. 平等權 또는 平等原則 違背 與否 162
• 2. 居住 이전의 自由 侵害 與否 165
• 3. 生存權, 인간다운 生活을 할 權利 侵害 與否 166
• 4. 開發制限區域 內 土地와 관련한 財産權 등 侵害 與否 168
• 제7절 其他 問題點에 대한 改善方案 169
• 1. 相續財産에 대한 課稅의 改善方案 170
• 2. 宗中財産에 대한 課稅의 改善方案 172
• 3. 合算排除 賃貸住宅 要件의 改善方案 177
• 4. 業務用土地에 대한 課稅의 改善方案 180
• 5. 住宅 課稅標準 基準金額의 改善方案 182
• 6. 稅負擔 上限의 改善方案 182
• 제5장 結論 184
• 참고문헌 193
• 【국내 문헌】 193
• 【외국 문헌】 195
• 【기타 자료】 195
• ABSTRACT 196