조세환급채권의 소멸시효에 관한 연구

The "overpayment" can arise in several ways: (1) through overwithholding of taxes, (2) through an error in the calculation of the tax liability, (3) through carrybacks from other taxable years in income tax or cooperate tax, (4) through the refund fora - i.e., the National Tax Tribunal, the Court, since the assessment is confirmed of nullification or cancellation. Nevertheless the taxpayer can claim the tax refund for many reasons, they are based on the same basis. That is, there is no ground for the tax assessor to enjoy the unjust enrichment just because of the incorrect tax payment by the taxpayer. So the right of tax refund is similar to the civil right of unfair profits. But the right of tax refund is base on the tax law, which is characteristic of quantity, repeatability, and the principle of no taxation without law. On these sight, there are several problems on the statute of limitation of refund right. First, the period of statute of limitation is five year, it is caused of the stability of national finance system. But because the statute of limitation of tax assessment is tend to be longer, it is necessary to extend the period of extinctive prescription of refund right. Secondly, someone has the opinion that the nation should not the give up the right of extinctive prescription, after the period of statute of limitation. But after the period of statute of limitation the tax collector can cancel the tax and refund. Therefor the nation can give up the right of extinctive prescription. Third, it is necessary to admit the interruption of prescription broader than the civil one. For example when the tax collector taxes the additional corporate tax on one corporation, he also taxes the constructive bonus or payment. In that case if the corporation files the suit, and the corporate tax is canceled, the extinctive prescription of income tax refund is disrupted at that time of filing the suit.