조세의 전가와 담세자의 헌법소원

The shifting of taxation refers to the phenomenon in which an economic subject transfers an actual incidence of taxation in part or in whole to others by adjusting its own economic activity when the tax is imposed. When taxation is transferred from a legally responsible entity to some other entity, the tax-bearer receiving the actual tax incidence may believe the tax is paid from his or her own purse. In this respect, a constitutional complaint by the tax-bearer should perhaps be allowed for the infringement on his or her fundamental rights if the tax-bearer believes a particular tax regulation is unconstitutional. However, it is questionable whether bearing the actual tax incidence is a ‘legal’ phenomenon. If a plaintiff is not legally related but only economically related to the imposed tax, the claim for adjudication on a constitutional complaint becomes invalid. In this paper, the legality of such a constitutional complaint by a tax-bearer has been examined, especially whether self-relation and immediacy are present as requirements for justifiability and whether the position of the Korean Constitutional Court is reasonable regarding this issue.