조세감면에 있어서 신뢰보호와 기득권의 해석

The Supreme Court makes a little complex application of the criterion of the decision on protection of trust and vested rights in the tax law. It causes many problems when applying the reduction and exemption provision in taxation. In other words, in case of amending the act and subordinate statute or ordinance, it's problematic whether provisions, when the fact of tax requisition occurred, should be applied, otherwise, those before amendment. It seems that the Supreme Court decides them by the complex criteria including the existence of the causal act, abolition or full amendment, transition rule, causes attributable in addition to the property of the relevant tax item. However, as many judgements have no instruction on the concrete criteria, it's difficult to decide them accurately. Therefore, this study aims at inspecting the general criteria through examining not only precedents of the Supreme Court but ruling of the Tax Tribunal or the Ministry of Public Administration & Security. Consistently, the Supreme Court doesn't acknowledge vested rights or protection of trust in case the act and subordinate statute or ordinance was abolished or fully amended. However, such a decision is regarded to be undesirable. As for the reasons, first, it's a case the relevant act and subordinate statute or ordinance induces an act of a taxpayer through reduction and exemption, so the range of trust to be protected has to be expanded. Second, the period vested rights is established is when there's an act of the tax payer. There are no rationals that invalidation of the act and subordinate statute or ordinance should be identical with that of the vested rights. Third, such a decision of the Court causes incapacitation of the policy economically so the public welfare may decrease over the whole society. Accordingly, it's reasonable that the Supreme Court should correct its prior position and apply the former reduction and exemption provision in taxation through ensuring protection of the taxpayer's trust.