세법 분야의 헌법재판 회고 ―헌법재판소 결정례(1988～2016년)를 중심으로―

Like as other miscellaneous laws, tax laws are deeply rooted in the Constitution, which is the supreme law of a nation. But it could be said that, due to principle of no taxation without law and ability-to-pay principle, the two major principles of tax law that the Constitution presumes, the Constitution seems to have a particular presence in tax law field. The Constitutional Court of Korea has made a meaningful contribution to the reestablishment of the relationship between the Constitution and tax law, taking the principles of taxation as expressed in our Constitution as a guide for constitutional adjudication. Since its foundation in 1988, the Constitutional Court has conducted constitutional adjudications on numerous tax law cases past during last 28 years, and the influence of the Constitutional Court on tax law area has been highly regarded and unparalleled. The chamber of the Constitutional Court is considered to be replaced with new ones when a new chief justice is inaugurated. In this article, the major constitutional decisions concerning tax laws will be reviewed in chronological order of five chambers. The major constitutional issues concerning tax laws are the principle of no tax without law, ability-to-pay principle, and protection of property rights. At the very least, the Constitutional Court has never failed to review one of those three issues in reviewing the constitutionality of tax law. When looking into the tax law cases, you will recognize that the Constitutional Court’s way of reviewing those issues has not always been the same, while certain trends and characteristics were manifested. The Constitutional Court made several decisions of unconstitutionality, limited constitutionality, limited unconstitutionality, and constitutional nonconformity by reason of breaching the principle of no tax without law. However, the it seems to have changed such inclination after mid-2000s. The Constitutional Court seems to be keen to show more deference to the legislative power. Meanwhile, there exists a stark difference between the Constitutional Court and the Supreme Court on whether the binding effects of limited constitutionality decision shall be acknowledged. It is important to address the discrepancy in the opinions of both Courts. Also, a legal basis for the modified decisions of the Constitutional Court should be established in order to make ground for the uniform interpretation of the Constitution and consistency of the legal system.