法人稅法上 不當行爲計算否認에 관한 硏究 = (A) Study on the Disclamation of Unfair Act and Calculation Under th Act on Corporation Tax

다국어 초록 (Multilingual Abstract)

As our economy has developed to an extent that a modern nation is called a tax nation and the standard of national income have been improved, it is not too much to say that taxes exorcise a great in fluence upon national life.
Even though the tax is defined as several expressions, it is in general defined as the money or goods that a nation or local government collects compusorily from its residents, not that a nation or local government benefit from individual compensation for the purpose of its financial accomodation.
Accordingly, as the tax presuppose the unpartial apportionment, the principle of legislated taxes(that taxes shall only be imposed in accordance with the law) and the principle of tax equality are constituting two mainstays in the basic principle of the Tax Law nowadays.
Therefore, if members of a nation proceed to lead their economic lives in a fair and reasonable way, the tax law cannot but impose appropriate taxes on them according to each tax-bearing compacity and protect their economic lives.
If any member of a nation violates the principle of tax equality through carrying on transactions to neglect the normal interpersonal transactions , the sound social idea generally accepted, and commercial practice, the tax law comes to interfere in him, not imposing lawful effects on such acts, and as a typical example, the unfair act calculation system can be taken to be inquirea into in this study.
The disclamation of the unfair act and calculation by the corporate body or the Judicial person is referred to as the procedure that the national Tax Administration should disciaim the efficacy of its act or calculation of the corporate body or judicial person lawfully and effectively materialized in the general legal relations on the private laws such as a civil law or commercial law from a viewpoint of the Tax Law, correct such act or calculation into normal act or calculation, and then work on the additional assessment and determination of taxation on it.
Accordingly, this study aims at inquiring into the concrete contents as below as regards the disclamation of the unfair act and calculation in the corporation Tax Law of the several provisions for the protection of tax avoidance in the Tax Law, eliciting the controversial points about the Tax Law system, and provide for its reform measure.
In chapter two the concept and pattern of tax avoidance, and the concept on the disclamation of the unfair act and calculation are inquired into for to purpose of grasping the contents on the protection of tax avoidance that the Tax Law system as aiming at.
As the requirements and patterns of the present tan system are inquired into through several doctrines and judicial precedents in chapter three, this thesis seeks to formulate the standard of judgement on the disclamation of the unfair act and calculation by the corporate body, inquire into the several cases through the analysis on the patterns provided in the enforcement decree of the Corporation Tax Law, and preponderantly discuss the basic contents of the effect of the disclamation of the unfair act and calculation and the scope on which its effect has an impact.
And this thesis elicited the controversial points in the operation of existing law institution and the controversial points in the system of the provisions of the Cooperation Tax Law based upon abovementioned results in chapter four, and made a suggestion on its reform measure, and so sought to achieve the purpose of this study.
Since the scope of specially related persons, first of all, is excessively wide-ranging in the system on the disclamation of the unfair act and calculation stipulated in, the Corporation Tax Law, it is required to scale down the scope to the scope that can exercise an influence upon the corporate body(corporation) as the present family relation and specially related persons.
And now that there is any method to prevent double taxation from a viewpoint of the present provisions in disclaiming the act and calculation lawfully formed in a private law, this thesis suggested that there are plans to avoid double taxation, not conducting the income disposition in accordance with the disclamation of the unfair act and calculation as the institutional apparatus for the matching reconciliation.
And because the its concept, in regulation, is not clear, this thesis made a suggestion on the plan to establish the safety belt in taxation and reorganize the patterns of the act and calculation of the object for disclamation, taking into consideration the reality that is leading to cause frequent tax frictions.
And this study sought to make a suggestion on the necessary standard of Judgement for the National Tar Administration to approximate to truth with deep insight into economic facts and actualize the Justice of tax in the above study.
And it sought to suggest the standard of transactions that prohibits to taxpayer from apportioning the benefits of the judicial person(corporation) to the specially related persons and destroying the principle of taxation equity through the abnormal form of transactions as a means of tax avoidance.

목차 (Table of Contents)

• 목차 = 1
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 3
• 第2章 不當行爲計算否認의 一般理論 = 4
• 第1節 租稅回避와 實質課稅原則 = 4
• 1. 租稅回避의 槪念 = 4
• 2. 實質課稅原則과의 比較 = 8
• 3. 租稅回避의 類型 = 9
• 第2節 不當行爲計算否認 = 13
• 1. 不當行爲計算否認의 定義 = 13
• 2. 不當行爲計算의 本質 = 17
• 第3章 不當行爲計算의 制度및 實態 = 22
• 第1節 不當行爲計算否認의 要件 = 22
• 1. 主觀約 要件 = 22
• 2. 客觀的 要件 = 25
• 第2節 不當行爲計算의 類型 = 38
• 1. 規定의 性格 = 38
• 2. 親定上의 類型 = 39
• 第3節 不當行爲計算否認의 效果 = 54
• 1. 課稅官廳의 獵自的인 計算 = 54
• 2. 努力이 미치는 範圍 = 55
• 3. 他 規定의 適用 排除 = 56
• 4. 租稅犯 處罰上의 特例 = 56
• 第4章 不當行爲計算否認制度의 問願點 및 改善 方案 = 58
• 第1節 特殊願係者의 範圍 = 58
• 第2節 不當行爲計算 類型의 整備 = 60
• 1. 安全上의 設置 = 60
• 2. 特殊關係者間의 資金支援 = 61
• 第3節 對應調整 = 62
• 第5章 結論 = 64
• SUMMARY = 66
• 參考文獻 = 70