조세회피행위의 규제에 관한 최신 판례의 동향 연구

Today, as our society's economic growth, ways of tax avoidance are also becoming more diverse and sophisticated. Due to ambiguous characteristics of tax avoidance which is hard to be distinguished from legitimate tax savings, discussions on the measures of regulating tax avoidance are very important all over the world. In Korea, as a criteria on regulating tax avoidance, there have been previous rulings of Supreme Court that unless it is a sham transaction, either denial of tax avoidance behavior or reconstruction of transactions is possible only if there are Specific Anti-Avoidance Rules. But considering tax avoidance means what tax payers want to be taxed by the transaction forms they created validly, it is difficult to evaluate it as a sham transaction. In Korea, it especially means sham in fact, not sham in substance. And if Specific Anti-Avoidance Rules are required to regulate tax avoidance, it would be difficult to regulate the new forms of tax avoidances. Moreover, it does not accord with the current situation after the legislation of Article 14, Clause 3 of the Framework Act on National Taxes on December 31st 2007, which is regarded as General Anti-Avoidance Rules. In this paper, I researched the current trend of court decisions, particularly paying attention to “2008Du8499", a Supreme Court en banc judgement which showed a clearly different standpoint, which has also been rendered on January 19th 2012, and succeeding judgements following the decision. As a result, I could find that the stance of previous rulings are rarely quoted in recent court decisions, on the other hand, ones based on the Substance-over-Form are increasing. Ultimately, courts should depart from the traditional stance which is not appropriate to regulate tax avoidance, and decide according to the conditions listed on Article 14, Clause 3 of the Framework Act on National Taxes, which was legislated to regulate general tax avoidance.