후발적 경정청구사유에 관한 비판적 고찰

Abstract

It is desirable from the point of view of justice to get back the tax that has been filed and paid incorrectly, whether it is tax return or assessment. However, if the tax system is designed in such a way that any tax wrongly
 paid can be refunded forever, regardless of the reason or any method, the tax legal relationship will be in an unstable state for a long time, undermining legal stability and putting an excessive burden on tax administration. Therefore, in order to receive various tax benefits under the tax law, not only the requirements set by the tax law must be met, but in many cases, procedural requirements such as reporting within a specified period are required. For the same purpose, an appeal period is set for contesting the validity of a tax disposition, and a period for exercising the right to claim for rectification is set. If so, it should be seen that the grounds for requesting a subsequent rectification can also be limited by law. 
 In light of the text and system of the law, the grounds for requesting subsequent rectification stipulated in Article 45-2 Paragraph 2 of the Framework Act on National Taxes and Article 25-2 of the Enforcement Decree of
 the Framework Act on National Taxes should be regarded as enumerated. 
 Article 45-2, Paragraph 2, Subparagraph 5 of the Framework Act on National Taxes and Article 25-2, Subparagraph 4 of the Enforcement Decree of the Framework Act on National Taxes contain the expression ‘similar grounds’, but the meaning is ‘similar grounds to those listed above’. It doesn’t mean ‘every reason other than those listed above’. Nevertheless, Supreme Court precedents sometimes broadly interpret the grounds stipulated in the statute as illustrative, and sometimes narrowly interpret them as if they were restrictive, in determining the grounds for a subsequent request for rectification. Regarding the argument, the Supreme Court lacks a consistent standard, such as overcoming the limitations of the principle of affirming rights and obligations when interpreting broadly, and raising differences between civil and criminal judgments when interpreting narrowly.
 In conclusion, although there is room for flexible interpretation of the current grounds for the request for rectification, it should be considered to be basically enumerative. Nevertheless, the attitude of forcibly fitting reasons that are not stipulated in the Framework Act on National Taxes to similar to those stipulated in the Act is judicial legislation close to law creation, not law interpretation. For example, it is the right direction to seek legislative improvement measures for issues that require taxpayer relief, such as the inability to collect debts due to the bankruptcy of debtors, changes in legal interpretation, and unconstitutional decisions.