세법상 사해행위취소 제도의 적용상 쟁점과 입법적 개선방안

Fraudulent act revocation right is a judicial right to cancel a legal act of a debtor on his property and to seek its restoration in order to preserve his liability property. Such a fraudulent act revocation system is very usefully exercised also in a tax claim case. Article 30 of the National Tax Collection Act stipulates fraudulent act revocation right. With respect to execution of disposition for taxes arrears by the country, the tax creditor, if a taxpayer takes a legal act on his property for the purpose of doing harm to the tax creditor, then the country may cancel the legal act and make its restoration so that the country can make an attachment on the restored property. In principle, fraudulent act revocation system under taxation law applies legal principles of creditor's revocation right. However, preserved credit is a legal claim to create tax claim-obligation relationship if it satisfies a certain tax requisition, and the priority of national tax is applied thereto, which excludes application of creditor egalitarianism in order to secure collection of national tax due to the nature of public interest of financial requirements. Considering the fact that the preserved credit is different from ordinary judicial credit, it is necessary to treat the preserved credit differently from the legal principles of creditor's revocation right under the Civil Law. It is required to make an improvement as follows in order to strengthen tracing on property of a defaulter under the tax law and to faithfully perform functions of fraudulent act revocation system by way of securing effectiveness of compulsory execution;First, it is very important to evaluate market price of positive property value for judgment of fraudulence under tax law and therefore, the article 60 of the Inheritance Tax and Gift Tax Act, the general evaluation standard of property, should apply to accurate calculation of the market price. Second, in order for priority of national taxes to be secured in a lawsuit for fraudulent act revocation, special provisions should be arranged for taxation office to exercise priority over the property restored as a result of fraudulent act revocation according to provisions of the National Tax Collection Act. Third, with respect to fraudulent act revocation right under taxation law, it is required to have a special stipulation specifying that period of filing a lawsuit shall be as 2 years from the date when the creditor becomes to know the cause of revocation and as 5 years from the date of a juristic act. Fourth, taxation of gift tax on original beneficiary at the time of restoration is improper so that it should be considered as a later occurring reason for reassessment claim and correction opportunities should be given to the original taxation. Accordingly, considering special characteristics of the tax law, it is necessary to separately specify applicable requirements including those for fraudulent act revocation right under the National Tax Collection Act instead of applying the Fraudulent Act Revocation System under the Civil Law in order to efficiently achieve a goal for disposition on default, to secure stable yield of tax and to raise consciousness of tax payment.