세법상의 가장행위에 대한 고찰

This paper suggests the reasonable concept and approach about ‘Sham Transaction’ in tax law. ‘Sham Transaction’ in tax law has been used against tax avoidance cases, and many jurists get understood this concept which is alike ‘sham’ in civil law. However, it has brought some criticism, because it depends on sham in civil law seriously. Recently, ‘2008Du8499’ Case(Justice Park's Opinion) suggests some different insight about ‘sham’ in tax law. This opinion suggests that we establish the legal concept of ‘sham’ in tax law by the nature of tax law as an independent law. It is time to get a new insight and concept about ‘sham Transaction’ in tax law. This paper consists of 3 parts. First part explores Korean representative cases including 2008Du8499. Past cases were based on the textualism of tax law, but recent cases make some changes with ‘sham Transaction’ in tax law, which focus on ‘ability to pay’ principle in tax problem. Second part is about foreign legislations and cases. It examines 3 countries, Gemany, the U.S. and Japan. Last part is about new paradigm of ‘sham Transaction’ in tax law. This part makes a new concept of ‘sham Transaction’ in tax law, which is considered other nations' legal features, and tax logics. Specially, It examines other countries' approaches about ‘sham’ in tax law. In Germany, it uses one legislative approach to ‘invalid transaction in civil law’ ；these transactions in invalid sector of civil law are taxed on economic results which are occured or remain. German General Tax Code Section 40 or 41 handles ‘invalid transaction in civil law’ by one tax principle, “ability to pay”. In the U.S., it uses one conceptual sector about ‘sham’ in tax law. the U.S. also manages many problems by Original Sham transaction Doctrine, which is based on “an ability to pay” Principle like Germany. However, in Japan, it uses only the concept of ‘sham’ in civil law against taxable problems, and it also develops many variations to ‘sham’ in tax law. Japanese variable methods lead to many controversies which indicates an logical and practical error. This paper tries to establish a new concept and set of ‘sham Transaction’ in tax law, which is based on the nature of tax law, and also considers tax logics for an illegal income, and a void transaction near ‘sham’ in civil law. This paper creates one comprehensive area of tax law to 3 sectoral transaction of civil law by one taxation logic on “ability-to-pay” principle. In accordance with this logical process, the above area could be named as ‘sham Transaction’ in tax law. It could be consistent with taxation process, and ‘substance over form’ principle.