조세법상 사해행위취소권의 문제점과 개선방안에 관한 소고 = A Study on Problems and Improvement of Rights of Revoking Fraudulent Actions in the Korean Tax Law

다국어 초록 (Multilingual Abstract)

To begin with, the problems and improvement in Article 30 of the basic law for national taxes and Article 97 of the basic law for local taxes are summarized as follows.
First, unlike a creditor's right to revoke in the civil law, Article 30 of the national tax collection law and Article 97 of the basic law for local taxes provide only ‘revocation’, and therefore this paper points out the problem that it does not correspond to eclecticism which conventional wisdom and precedents hold by. Revising the article as 「revocation and restorative justice」 will be able to supplement legislative imperfection, secure unity with the civil law, and prevent confusion in interpretation in the tax law.
Second, in order for a creditor of tax to exercise rights of revoking fraudulent actions, it should wait until the due date for payment of tax reminder. In this case, the problem is that if the statute of limitations is expired, missing tax claims eventually occurs under the current tax law, so it is reasonable to revise the national tax collection law so that tax authorities can exercise rights of revoking fraudulent actions from a fixed date of liability to pay taxes.
Third, bringing a tax revocation suit for fraudulent acts is limited by the statute of limitations, that is, one year from the day when a creditor of tax gets to know the cause of revocation. The problem is that the term is extremely short for a creditor to conduct a follow-up survey one by one on malicious defaulters who are increasingly sophisticated. It is necessary to increase the term of the statute of limitations of rights of revoking fraudulent actions at least to two years to secure tax claims when considering the followings: the fact that in Germany and Japan, legislative examples provide relatively longer term for a creditor to exercise rights of revoking fraudulent actions, strongly protecting a creditor's rights and interests, the fact that it is imperative to acknowledge the uniqueness of tax revenue compared with obligations in the civil law since tax revenue is the basis of operating a nation, and the fact that one year term is too short to trace and discover hidden assets of increasingly sophisticated defaulters.
Fourth, in principle, while it is possible to revoke fraudulent actions taken after establishment of liability to pay taxes, the Supreme Court recognizes that rights of revoking fraudulent actions can be exercised even before establishment of liability to pay taxes if certain conditions are met. Since there is no substantive enactment in the tax law, which causes confusion in interpretation of the tax law and undermines transparency in the tax administration, it is necessary to define it by law for preventing confusion in interpretation of the tax law and improving transparency in the tax administration.
Next, the problems and improvement of Article 85 of the enforcement ordinance, the same law as Article 97 of the basic law for local taxes, are summarized as follows.
First, in regards of the expression, 「the head of local government」, because a revocation suit for fraudulent acts is a civil litigation, the administrative agency lacks the admissibility of a party to legal proceedings but the local government which the administrative agency belongs to has the qualifications to deal with it. As a result, there is a confusion caused by the expression above in the provisions of the tax law, so it is necessary to revise it as 「the local government」 and compensate the defect.
Second, Article 85 of the enforcement ordinance in the basic law of local taxes uses the expression 「defaulter」 despite the fact that defaulters cannot be the other party(the accused), which contradicts eclecticism that conventional wisdom and precedents hold by. Since this Article 85 is an unnecessary provision only bringing about confusion, it is suggested that it should be deleted to promote unity with the national law.
Finally, the problems and improvement of Clause 4, Article 35 of the basic law for national taxes and Clause 4, Article 99 of the basic law for local taxes which provide “rights to revoke fictitious security” are summarized as follows.
Among the provisions of the law above, the expression, 「with proceeds from sale of the property」 can be criticized for the reason that even though tax authorities could secure tax claims through disposition for failure in tax payment against taxpayers' other property, the state interferes excessively in judicial transactions. Another problem is that the expression gave room for abusing rights to revoke to tax authorities, and therefore there should be a proviso only, if national taxes can be collected with other property, these rights to revoke cannot be exercised newly attached so that it can promote taxpayers' rights and interests and security of judicial transactions.