위법소득의 과세에 관한 연구

Illegal income may be classified into three categories in accordance with the character of law violated or breached in the course of obtaining the income. The first one is criminal illegal income the obtaining of which itself constitutes a criminal. The second one is civil illegal income which is derived from an invalid or cancelable civil act and thus, is liable to be refunded to the payor. The third one is an administrative illegal income which is derived from the act of violating an administrative law provision. The Korean Supreme Court precedents and foreign legislative and judicial precedents are of the opinion that the obtainer of illegal income should be subject to income tax so long as he dominates and enjoys the economic proceeds of the illegal act concerned although he bears the liability to refund it to the sufferer (“the principle of economic domination”). Even though the Korean Supreme Court has ruled that capital gains are not realized or recognized when the concerned civil legal act is invalid or canceled in breach of compulsory legal provisions and as a result the earner of the income is liable to refund it to the payor, it can be said that the ruling did not deviate from the application of “the principle of economic domination” since it is highly probable that the earner of capital gains in such case will refund the price received for the property transferred and therefore, can not dominate economic proceeds of the transaction. In any case, when the obtainer of income refunded it or the income was forfeited by the government after the income tax is collected, then it is reasonable that the government should refund the collected tax because the obtainer of income no longer dominates and enjoys the economic proceeds of an illegal act.