조세포탈죄에 있어서 법률의 착오에 대한 소고 -미국 조세포탈죄의 항변사유가 주는 시사점을 중심으로-

Our Supreme Court has traditionally distinguished the ignorance of law from the mistake of law in criminal law. Therefore the ignorance of law is no excuse, and the mistake of law has limited room for immunity. However there are many opposite opinions. Meanwhile, the United States has widely acknowledged the defense of defendant the he or she has no “willfulness” to evade or defeat, file the return and pay taxes. Model panel code and the tax criminal law state the mens rea as well as actus reus. Especially, willfulness is the mens rea in tax crime. Willfulness is the state of mind that voluntarily and intentionally commit the action not accidentally. However many courts have evaluated the defense causes that can nullify the willfulness. It can be divided into uncertainty of tax law, good faith confidence for tax experts, ignorance or mistake of law and mental disorder, etc. The defense is generally accepted in tax crime. The reason is that it is difficult to assume that an ordinary person knows its contents due to the complexity of tax system and account method. However, such situation is similar to Korea. Tax laws are becoming complex and the delegated regulations and rules are increasing, tax accounting is generally difficult to understand. People rely on the tax exports more and more. In our criminal law system, if the accused has a specific subjective reason, we do not accept responsibility and declare innocence. However, the criteria for specific reasons are not set objectively. This paper concretely examined this, considering that the reasons for defense of willfulness under the United States criminal tax would give implications when setting criteria for ours.