임직원 횡령시 상여처분 가부에 대한 판례의 문제점 고찰

Art. 67. of the Corporation Tax Act(“CTA") and Art. 106. of the Enforcement Decree of the CTA provides that when the amount included in the calculation of the earnings has flowed out of a company and reverted to an executive and employee of the company(“employee”), it shall be disposed of a bonus by disposition of earnings(“disposition of bonus”) to the employee. In addition, According to Art. 26. of CTA, the amount of disposition of the bonus may not be included in the calculation of the losses. Also, the company shall withhold the income tax on the amount of disposition of the bonus, complying with Art. 26. of the Income Tax Act. There is a question whether the employee's embezzlement satisfies the requirements of disposition of the bonus. The Judical Precedents(“precedents”) mentioned that even the employee has embezzled the company asset, as long as there are no circumstances that the company is believed to be abandoned or waived of its claims for damages, it cannot be regarded as outflow of the company and therefore it does not fulfill the requirements for the disposition of the bonus. The basic Judicial Doctrine(“doctrine”) of these precedents is that the claim for damages which is equivalent to the amount of damages for loss should be recognized as the same amount at the time of the embezzlement. However, it is considered that the doctrine has overlooked the fact that a claim which recognized as income must be able to expect the cooperation from the other party, however, the claim for damages caused by tort cannot meet this expectations. In addition, the precedents have insoluble problems such as bringing about double taxation problem by recognizing the income twice on the victim (corporate) level and the offender(embezzler) level and violating the clarity of tax laws principle etc. The precedent's interpretation of the Art. 67 of the CTA is inappropriate. According to the plain meaning of Art. 67. of the CTA, first, it should be recognized that the requirements for the disposition of bonus by the employee’s embezzlement are met. Second, therefore the company burdens that it cannot deduct the amount embezzled from the income but also has to withhold the tax. Based on this premise it is required to review closely on whether the company's these tax burdens have reasonableness and the Constitutional legitimacy.