조세형사범 사건과 실질과세원칙

Substance over form principle is the principle that the tax law should be interpreted and applied depending on substance, if there is a mismatch in the form and substance. In the area of tax law, substance over form principle come into question very frequently, and it has an important role in determining whether each tax liability is established or not. It is precedent and received opinion that substance over form principle does not run counter to the principle of no taxation without law. The taxpayer can be punished as a tax criminal, if he/she did not implement tax liabilities in a malicious way. The principle of “nulla poena sine lege” is applied to the tax criminal punishment procedure. Being the criminal laws clear according to the principle, it come into question whether that each tax liability is established according to substance over form principle is contrary to the clarity of criminal law principle or not. It is the Supreme Court and the Constitutional Court’s position that the clarity of the criminal laws is not basically different from the clarity of tax laws. That is：If the ambiguity can be resolved through reasonable interpretation, relevant penalty provisions meet the request of clarity, although the wording itself looks unclear to some extent. In short, if we can understand the clarity of criminal laws as stated above, we can admit the establishment of tax liabilities in accordance with the substance over form principle；if a taxpayer did not implement tax liabilities in a malicious way, he/she can be punished. Such criminal punishment will not be contrary to the request of the clarity of criminal laws.