조세포탈범에 있어 부정행위의 판단기준에 관한 연구 - 미국, 일본의 제도와 비교를 중심으로 -

Abstract

The purpose of this study is to identify problem areas and seek improvements in our current system through comparative study with the U.S. and Japanese one focusing on “fraudulent act” which is an element of criminal tax evasion.BR In the current Korea tax code, the criteria for judging the element of ‘fraudulent act’ in tax evasion is to determine whether there was “active concealment.” In the U.S. and Japan, the subjective elements, such as “the intent to evade tax”, as well as the objective element of the action of concealment, are used as criteria for judging unlawfulness in under-reporting or non-reporting tax under the self-assessment system. However, in Korea, the current method is still focused only on ‘active concealment’ which was objective element, even if the Korean tax system was changed into the self-assessment system more than 20 years ago. Furthermore, unlike the U.S. and Japan, though ‘fraudulent act’ is an abstract and variable concept, it is defined in the criminal statute as a subconcept of a detailed version defined as “an active act that makes tax levying or collecting significantly difficult or impossible.”BR The following improvements are proposed by reflecting on the U.S. and Japanese schemes of this issue on the judgment of unlawfulness.BR First of all, our court interpretation should include “intent to evade a tax” as an explicit requirement with regard to the element of fraudulent act in criminal tax evasion and actively use it as a judgment criteria much like the U.S. and Japan. The role of restricting punishment for antisocial tax evasion is not limited to defining activities of concealment (the criteria for