세법상 특수관계인의 범위 규정에 관한 연구- 상속세 및 증여세법상 유형별 포괄주의 도입을 중심으로 -

Transactions between affiliate persons are likely to illegally reduce tax burden for terms of transaction are arbitrarily decided so regulations on tax law for those transactions are desirable not only to secure tax revenue but to realize economic justice. As economy becomes complex and varied, there have been numerous cases where tax was acquitted of a charge by evading established tax law regulations or by using subtle meanings of law, on which the government belatedly tightened regulations through tax law revision or took complementary measures through legislation. Enactment of the comprehensive taxation system on gift tax in late 2003 is a representative example of it. The regulation on affiliate person which has been supplemented several times is not an exception as well. Avoidance of tax through illogical transactions using links such as personal acquaintance or transactional relations is of much probability by evading the tax law regulation on relations between affiliate persons, which suggests that the all-inclusive system should be adopted on the tax law regulation to define range of affiliate persons. Reflecting the recent atmosphere and social need of regulation on greedy capital which has been brought up by the Ship Sewol tragedy, this thesis examines how to adopt the all-inclusive system by types to the regulation of economic correlation among regulations on affiliate person in the Inheritance Tax And Gift Tax Act. Results of this study can be summarized as follows. First, the all-inclusive system by types includes a case “when it is acknowledged that those who hinder economic rationality through wrong transactions or acts to reduce tax burden by using links such as personal acquaintance or transactional relations” into the economic correlation in regulations on the range of affiliate person in the Inheritance Tax And Gift Tax Act and: it is to be assumed to be applicable for a case where borrowed-name transaction is proved to be with an illegal purpose based on Article 3 of the Real-Name Financial Transaction Law. Second, affiliate person was defined on Framework Act on National Taxes in late 2011 but its definition was simply listed without concrete concepts established and: it is problematic that the range of affiliate person on tax law was all entrusted to enforcement ordinance, which deviates from limitations of delegated legislation. Definition of affiliate person, therefore, should be concretized on Framework Act on National Taxes while the range of kinship and economic correlation should first be defined universally and comprehensively on Framework Act on National Taxes, not on enforcement ordinance before being entrusted to enforcement ordinance. The concept of employer and a regulation that excludes minority shareholders from being applied to the range of affiliate person should be united in different tax laws by reflecting recent, various changes in employment environment. Third, it has been continuously pointed out that the regulation to define range of kinship does not properly reflect changing social context. This study suggests that the range of kinship, therefore, should be rationally adjusted to “blood relatives and relatives by marriage within cousin,” which is a range reduced from “blood relatives and relatives by marriage within second cousin.” This is to realize gender equality as well. Fourth, the regulation on kinship as living in the same place is unrealistic, which therefore should be abolished: arbitrariness is likely to be involved in applying regulation on individuals who exert influence so the right to explain that one is not an individual who exerts influence should be acknowledged by law and: a corporate body dominated by the same person is not subject to a relation of working control based on the current tax law but it should be included in the range of affiliate person by reflecting economic reality.