조세의 숨은 제재적 기능과 헌법적 한계 - 헌법상 재산권 보장을 중심으로 -

This article features taxation with hidden function of sanctions(hereinafter “punitive tax") and reviews the legal issues of the relationship between tax and right to property, in addition to the standard of judicial review of the constitutionality of a tax law on deciding whether that law is in violation of the right to property of an individual. In case where a tax is imposed to discourage certain activity of people in order to obtain desired results, which would help better implement of social policies, that tax will most likely act as sanctions against taxpayers. “Punitive tax" could be classified into three types―taxes that include the certain activity as taxable item or expand the range of taxable object；progressive taxes with high rates；and disallowance of deductions. Imposing “punitive tax" along with penalty surcharge, surtax or criminal sanction is not considered as a violation of the principle of double taxation prohibition. The fundamental right to property under the Constitution of Korea, Art.23, holds a very peculiar relationship with taxation. The reason is that it serves both as an argument for the justification for taxation and as an argument for restricting the taxing powers of the state. When it is argued that taxpayers' right to property has been severely restricted subject to “punitive tax", the Constitutional Court will, under the principle against excessive restriction, review the constitutionality of the relevant tax law. Here, the Court shall determine whether balance could be found between the public interests, which will be achieved by implementation of the social policy and privates interests, which is the right to property of taxpayers limited by “punitive tax." Considering the characteristic of “punitive tax" as public policy, the broad discretion of the legislature should be respected. But still, the legislature will need to make sure that a tax law it enacts does not infringe upon the substance of taxpayers' right to property.