판례에 나타난 계약해제를 둘러싼 과세문제 = Tax Issues Surrounding Cancellation of Contract Shown In Precedent Cage

다국어 초록 (Multilingual Abstract)

In this essay, the precedent cases that can become a problem in the united operation of civil law and tax law while interpreting current tax laws among the precedent cases of the supreme court related to cancellation of contract. 39 cases related to taxation including “contract” and “cancellation” at the same time among decisions until May, 2008 since being published from volume 1 of 1953 supreme court law reports have been set as subjects of investigation. And 39 supreme court cases have been classified into taxes of property acquisition stage-acquisition tax (including registration tax), gift tax, and corporate tax- and taxes of property disposal stage-capital gain tax, aggregate income tax, corporate tax and value added tax.
In case the validity of contract is lost as contract is canceled in the tax law and becomes retroactive according to the civil law, there is a time when the case of imposing tax and the case of not imposing tax are clarified. In case of the gift tax, where there had been a dispute in the old Inheritance Tax Law where this had not been clear, the case of gift tax not being imposed for even the very first donation depending on v/hen the donation contract is canceled as well as the case of imposing gift tax for both the case of restoration to original state followed by very first donation and cancellation of donation contract out of extremity according to current Inheritance Tax and Gift Tax Law. On the other hand, the regulation for the repudiation wrongful calculation and unreasonable action determines whether or not to imposed taxes independently from the effect of canceling the contract according to the civil law. The regulation itself sets the premise as detachment between civil law and lax law.
But in case of not clearly specifying the difference with the civil law by ordinance in the tax law itself, interpreting toward the way of narrowing the gap between such tax law and Civil Law would be able to help lax payers to follow the unified legal standard on the economic activity. Seen from these perspectives, two decisions below out of eight decisions since 2000 needs reexamination.
The supreme court 2006.2.9. Sentence 2005 Du 4212 decision on Local Tax Law Enforcement Decree section 73 article 1 number 2 purpose of stipulation and scope of application needs reexamination from the fact that it was interpreted as imposing acquisition tax while there has not been a transfer of ownership. In case of canceling sales contract of non-business real estate, the supreme court 2002.5.10. Sentence 2000 Du 4989 decision also needs reexamination from the fact that it was interpreted as the v/ay of leaving disadvantage while there has not been a transfer of ownership. This is also in contrast to the supreme court 2001.1.16. Sentence 99 Du 8107 decision approving calculation of paid interest loss in case the sales contract has become ineffective.