세법상 사해행위취소판결의 효력에 관한 고찰 - 대법원 2015. 9. 24. 선고 2015두44943 판결을 중심으로 -

Prevailing view and case about effect of fraudulent act judgment in civil law takes a position of relative invalidity theory. The study tried to explore legal relation focusing on issue such as qualification for defendant of debtor or range of its effect etc. in regards to relative invalidity theory. Furthermore, the author examined the part that is different from the position of existing relative invalidity theory about effect of fraudulent act judgment in tax law in recent case of Supreme court and trial by a lower court. In the Supreme court judgment, because debtor failed to pay Capital gain tax(the first act)to secure receivables which is Capital gain tax receivables, government cancelled act to donate money by debtor to beneficiary(the second act) through suit to cancel fraudulent act. The case became a matter. This is because it was wondered if beneficiary should still bear duty to pay donation tax. Or beneficiary does not bear duty to pay donation tax because duty to pay tax became extinct by suit to cancel fraudulent act. Supreme court took a position that levy of donation tax to beneficiary is illegal, expanding range of relative effect of fraudulent act judgment. But on the other hand, judgment of trial by lower court took a position that levy of donation tax to beneficiary is legal because effect of cancellation judgment does not affect donation act of debtor, as judgment of trial by lower court of recent similar case judged relative invalidity theory as same as before. The grounds of Supreme court are that the plaintiff of fraudulent act judgment is government, the government office to levy donation tax is also lower administrative body of government, recovered money by fraudulent act judgment was allocated to Capital gain tax receivables. Based on this, judgment was made, expanding range of existing relative effect - duty to pay donation tax by beneficiary became extinct so that levy of donation tax is illegal. Differently from this, judgment in trial by lower court sticks to position of principle of relative invalidity theory so that effect of cancellation judgment does not affect government office that levied donation tax. So duty to pay donation tax still exists. Thus, in the very similar cases, judgment of court varies. This can make taxpayer and government office to levy tax be confused because they wonder if duty to pay tax exists or not. And they cannot predict if the right to levy tax is employed or not. Even if the right to levy tax is employed, it would be questioned that there is validity. To improve above problems, countermeasures below are can be thought. ① When winning a lawsuit of government is decided in the cancellation suit of fraudulent act made to donee, government office that levied donation tax should add later occurring reason for claim of reassessment to Enforcement ordinance Article 25, Section 2 of Frame work act on national taxes or inheritance tax and Article 79 of donation tax law so that the government office that levied donation tax can accept later occurring reason for claim of reassessment. ② In the Article 30 of National tax collection law, suit to cancel fraudulent act in tax law applies suit to cancel fraudulent act in civil law. Additionally, the sentence below should be added to supplement in law. “For securing tax claim, when a case was decided in favor of government in the fraudulent act suit, original state is recovered. When receivables(tax claim) are allocated with recovered funds, (differently from fraudulent act judgment in civil law), effect of cancellation judgment affects legal act between debtor and beneficiary”