한국 세법상 내국법인과 외국법인의 구분기준 ―한·일·중의 사법 및 세법상 비교를 중심으로―

The purpose of this dissertation is to compare and review the standards of classifying the domestic corporate and foreign corporate in the private law and tax law of the Korea·Japan·China. The corporation law and corporate tax law of Japan and corporation law of China is an express provision, while the civil law and commercial law of Korea and the civil law of China is an interpretation method and adopt the criteria on the location of the head office and applicable law of foundation of a company. These types of standards have an advantage that it is possible to divide the domestic and foreign corporate easily, however, it has a disadvantage that it might cause the problem of tax avoidance. In order to tackle those problems, the corporate tax law of Korea was amended in December 2005 and added the ‘actual place of management' into the standards to classify the domestic and foreign corporate. In case of China, it also added the provision of ‘actual place of management' to the classification standards of domestic and foreign corporate through the enactment of the corporate income tax law of the People's Republic of China. However, there is a difference between Korean law and Chinese law since corporate income tax law of China defines the concept of the ‘actual place of management' by the enforcement ordinance of the corporate income tax law which is the subordinate law of the corporate income tax law. In case of Korea, the requirements and matters to be considered for decision is clarified by the established law and deliberative decision cases such as an example of denying that the head office in Korea is the actual place of management of the register of shipping company established by the U.S.A. law and the actual place of management of foreign company established by the laws of Hong Kong is considered to be in the Netherlands. It deemed to be desirable to prescribe at least the meaning or standards of decision by the enforcement decree of the law in order for the tax payer to predict the ‘actual place of management' that is a criterion to classify the domestic and corporate company.