名義信託의 課稅에 관한 硏究

다국어 초록 (Multilingual Abstract)

So called trust is, in this study, a restricted law relation that is unable to exercise for himself while one side of the per- son concerned having right by his own name. Also, so called norminal trust is to place only the owned name in official ledger as a trustee, administering the object and earn upon possessing the ownership by truster in a domestic relation. Therefore a question was started for the properties registered by the name of the third party whether it was a breaching of the constitution for the donation fiction is related with the essential infringement. In addition to the above, there is an issue of violating the principle of taxation law principle, taxation equaliterianism and actual tax imposition which is the principle of taxation law. In order to understand the essence of the norminal trust, defined the essences of trusting act in civil law and trust in trust law, thereby surveyed the theory on theory for the validity, whether or not. But it beyond the extent of judical theory of the norminal trust, so examined the donation fiction of the norminal trust on its premise. As a results, firstly as a point of issue of the judical principle, also this regulation goes against the essence of donation in a view point of taxation law principle as well as goes against the clearness principle of tax imposition necessary condition, then happened to evaded the limitation of the nature of tax law. For the norminal trust of the juridical person, in a view point of the taxation equaliterianism, a point of issue which is impossible to impose even in taxes of juridical person or donation, also discovered that it is against the principle of equity with the donation fiction between spouse and lineal asendant / descendant as well as against the regulation of the second tax payment obligation of the stockholder of the norminal trust. In a view point of the inheritance procedure law, discovered that it vas evaded the limitation of supplemental means of the grasping substantial truth. For the instance of the norminla trust, at the time of the norminal trust of property which imposed burden, becomes heavy donation tax than the actual donation which is no burden. Also in case of sold the real estates through the third person to juridical person it was discovered that the amount of tax may exceed the amount of turnover including the transfer income tax and donation tax. However it can not be make a hasty conclusion whether this regulation goes against constitution. The substantial truth may be sacrificed for the personal or time restriction of decision procedure or for the convenience of tax imposer or tax payer. Also there might be a some reason in it even a precedent of aiming at the protection of tax evasion of the substantial reverted person through imposing to the norminal reverted person preferably this regulation has a substantial reverted person and norminal reverted person may have separately. Therefore eventually this regulation shall be connected with infringement to the substantial part of the property right or not, then it must be firstly decided whether certain extent of infringement has infringed the substantial part. Then followings are the essential points of the content mentioned in main issue putting in order: 1. Firstly, in Chapter 2 a comparative review was made on sub- stance and different points of trust in trust law and trust act in a civil law. Differencies from its nature is lies in whether exceed the economic aim or not thereby the differencies in effectiveness is lies in recognition of independent nature of trusted property that does not recognized in civil law in a view point of the trust law. 2. Secondly, in Chapter 3 fefined the general idea of trust prescribed in the trust law and further more mentioned its function and kinds of the trust, also stated effectiveness in theory relating effectiveness and ineffectiveness as well as general idea of the norminal trust. As we considering in precedent of the norminal trust in Chapter 4, even in esamples of the norminal trust of the property of the families of the same clan, since it has not been used for the purpose of tax evasion or illegally, it is at issue even we consider in side view of the concrete propriety not only for the legal stability to make void all norminal trust which has been recognized its effectiveness for a long time for only reason of possibility to abuse for the purpose of tax evasion. In addition to the above, considered the employment and actual condition among precedent and example centering around the Ministry of Finance, the Office of Tax Administration, the Civil Suit of National Tax and the Suprime Court, etc. Thrugh examination of the issues of unconstitutional points nad principle matters of taxation law and its precedent and example confirmed the points of issues. Therefore it was suggested the reforming point of the norminal trust tax imposition under the basis of the above therewith concluded this study. In this study, as stated above, should be a good opportunity of re-evaluate and supplement the propriety of all kinds of taxation law regulations related to the norminal trust as well as donation fiction of Par. 32-2 of the inheritance tax.

목차 (Table of Contents)

• 第1章 序論 = 1
• 第1節 問題의 提起 = 1
• 第2節 硏究의 目的과 方法 = 4
• 第3節 硏究의 範圍와 構成 = 6
• 第2章 民法과 信託法 規定에 의한 名義信託 = 8
• 第1節 槪說 = 8
• 第2節 民法上 信託行爲의 本質 = 11
• 第3節 信託法上 信託의 本質 = 11
• 1. 信託法上 信託의 意義 = 11
• 2. 信託法上 信託의 特徵 = 12
• 3. 信託法上 信託의 性質 = 14
• 第4節 民法上 信託行爲와 信託法上 信託의 差異 = 15
• 第3章 信託의 槪念과 名義信託의 意義 = 17
• 第1節 信託의 槪念 = 17
• 第2節 信託의 機能과 種類 = 19
• 1. 信託의 機能 = 19
• 2. 信託의 種類 = 20
• 3. 信託財産의 租稅法上 取扱 = 22
• 第3節 名義信託의 意義 = 23
• 第4節 名義信託의 有效性 = 28
• 1. 無效說 = 28
• 2. 有效說 = 31
• 第4章 名義信託의 事例 = 34
• 第1節 大法院 判例를 中心으로 한 名義信託 = 34
• 1. 宗中財産의 名義信託 = 34
• 2. 一筆地의 土地중 一部를 買受하고 全部에 대하여 所有權 移轉登記를 한 경우 = 36
• 3. 相互名義信託 = 36
• 4. 歸屬財産의 買受 및 拂下와 名義信託 = 38
• 5. 農地의 名義信託 = 39
• 6. 自動車 登錄名義의 信託 = 40
• 7. 其他 = 41
• 第2節 名義信託의 運用과 實際 = 41
• 1. 財務部·國稅廳 例規 = 41
• 2. 國稅審判例 = 44
• 3. 大法院 判例 = 45
• 第3節 名義信託의 課稅對象資産 = 47
• 1. 課稅對象資産에 대한 見解 = 47
• 2. 實質所有者와 名義者가 다른 경우의 다른 例 = 53
• 3. 資産別 課稅對象 與否檢討 = 58
• 第5章 名義信託의 課稅上 問題點 = 76
• 第1節 憲法上의 問題點 = 76
• 1. 問題의 提起 = 76
• 2. 綜合的인 考察 = 78
• 第2節 租稅法 原則上의 問題點 = 80
• 1. 租稅法律主義의 原則 = 80
• 2. 租稅平等主義의 原則 = 82
• 3. 租稅法上 節次法의 原則 = 85
• 第3節 判例 및 事例上의 問題點 = 87
• 1. 大法院 判例 등의 檢討 = 87
• 2. 具體的인 事例 등의 檢討 = 91
• 第4節 公示制度 등과의 問題點 = 95
• 第6章 名義信託課稅의 改善方案 = 97
• 第1節 槪說 = 97
• 第2節 解釋上의 改善方案 = 99
• 1. 看做를 推定으로 解釋하는 方法 = 99
• 2. 租稅回避意圖를 考慮하여 解釋하는 方法 = 100
• 第3節 立法上의 改善方案 = 101
• 第7章 結論 = 105
• 參考文獻 = 108
• 英文抄錄 = 114