의약품 리베이트의 위법성에 대한 고찰 －리베이트 위법비용의 손비산입 판결을 중심으로－ = A Study on Illegality of Medical Rebate -Focus on Tae-pyung and Worridel pharmeceutical company cases-

다국어 초록 (Multilingual Abstract)

The controversy rulings on handing illegal expenditures violating enforced laws with regard to Medical Rebate were held by appellate courts. The issue was whether an illegal expense for medical rebate should be deductible based upon Article 19 of tax law. It`s worth comparing and analyzing these two cases because there decisions reflected court`s opinion about illegality and reasons of medical rebate. Wooridle pharmaceutical company case was where Wooridle pharmaceutical company habitually has offered a cash rebate to doctors in general hospitals. However. Tae-pyung pharmaceutical company case was where Tae-pyung pharmaceutical has offered a cash rebate to not doctors but the large pharmaceutical firm which was closely related to general Hospitals. A court hold that illegal expense of medical rebate should be deductible as medical rebate is habitual in medical industrial structures and systems in Tae-pyung case. In Wooridel case, on the other hands, a court hold that illegal expense of medical rebate should not be deductible, pointing out that medical rebate was result of not the medical structure but the individual immorality, additionally if the expense is deductible, it would be easily to facilitate a tax evasion and an illegal rebate. Scholars and courts have claimed that an illegal expense should be deductible expect a special case where expense is related to anti-social order. I think that two cases which mentioned above merely followed this claimant when examining fact relevance and reasoning in two cases closely. However, these two conflicting cases have a underlying meaning which a court explicitly identified some shortcoming in medical structures and systems as the reason of medical rebate. Additionally, it cast doubt on illegal expense should be deductible. The principle of equality of taxation should be modified when illegal expense has a apparent illegal purpose which is not ordinary.