과세에 의한 재산권 제한의 의의와 한계

A constitutional theory in the constitutionalism era has undergone huge changes since the democracy achieved; however, the pace of such changes showed considerable differences in each region. While the clauses and theories of the Constitution regarding the composition and authority of state institutions as well as political order including political parties and elections were directly influenced by the democracy, other parts such as economic order and social security system were not and their changes were progressing very slowly. In the meantime, there were very distinctive changes in the areas that were not accepted as belonging to the fundamental rights. For example, public officers' rights and duties based on the special authority relations or professional civil service system or issues of the budget law were considered as not belonging to the protected area by traditional fundamental rights; even they were recognized as exceptional phenomena with respect to the application of the so-called rule of law The situation was changed, however, as civil rights or fundamental human rights were generally regarded as a central value of the Constitution and all state institutions and their functions had the purpose to ensure the human rights of citizens. Meaning of laws were reappraised and special authority relations were diminished and even denied. The significance and functions of a professional civil service system were reanalyzed; also, understanding of meaning and nature of the budget law were also changed. In these circumstances, it is clear that all those understandings about the rights of taxation including its relationship with property rights are needed to be newly addressed. In particular, the budget law was considered as a law in formality because of its irrelevance to the fundamental rights through the Prussia's budget disputes; Similarly, an argue that the rights of taxation is regardless of property rights is a product of a compromise between monarchy and the Parliament under the special political situations in the late constitutional monarchy era of Germany. It was a complex form of compromise which justified the Parliament's intervention based on the 'no taxation without representation' as well as recognized monarchs' special authority to impose taxes. Through this, monarchs could maintain taxing sovereignty, however, and the Parliament could restrictively control monarchs' compulsory taxing powers. On the other hand, should this be continuously followed in modern democracies? As an orthodox theory about special authority relations was modified several times and dismantled in the end, the essence of the taxation as the fiscal exclusion should shed an outdated form and be newly understood; only if the authority to impose taxes exists to serve for the people and is confined to the fundamental rights can the new understanding have systematic consistent and logical cogency. This paper starts from this critical awareness and tries to analyze the backgrounds of conventional interpretation about taxation and essence of the rights of taxation to point out interpretational drawbacks followed in modern times. In addition, there is a theoretical consideration that the state's power on the taxes can only be restricted by the property rights of the people and it is already verified through the several Constitutional Court's precedents. An attempt in this paper cannot assure its success to reinvent the relationship between property rights and authority to impose taxes from a new perspective yet. But at least it could be a stimulus for a new academic research on this topic as admitting a need for a review of the bilateral relationship more aggressively.