조세포탈죄의 객관적 구성요건으로서의 부정행위

Tax evasion is punishable under Article 3 of the “Punishment of Tax Offenses Act” (hereinafter referred to as “Act”) and fraudulent act is the core objective element to constitute a crime of tax avoidance. However, inasmuch as fraudulent act is an ambiguous concept, determining whether the foregoing Article 3 is applicable to individual cases is difficult. This paper aims to analyze and clarify the concept of fraudulent act. The contents reviewed herein are summarized as follows. First, the concept of fraudulent act derived from cumulative precedents was enacted via the revision of the former Act in 2010. For instance, Article 3(6)1 to 6 prescribes major types of fraudulent acts whereas Article 3(6)7 stipulates other fraudulent acts. By so doing, only acts typified under subparagraph 7 required determination of fraudulency based on social norms. Second, notwithstanding the fact that the affirmative action requirement under the current Act originally intended to eliminate intentional non-reporting and under-reporting from the scope of fraudulent act, the current position of courts is that non-reporting and under-reporting constitute a fraudulent act if accompanied by pre-concealment of earned income. In light of the tax ethics conforming with social norm and the tax reporting method under our tax law, there is no reason to deem that intentional non-reporting and under-reporting are fundamentally excluded from fraudulent act. Therefore, it is tenable to construe affirmative action as an act in which affirmative intent of tax avoidance is expressed. Third, the requirements pertaining to impossibility or remarkable difficulty of tax imposition and collection should be interpreted to mean cases where a taxpayer’s deception is difficult to grasp after a tax official faithfully performs his/her duty of care and reviews the taxpayer’s relevant books and documents based on his/her common occupational knowledge and experience. However, courts appear to easily acknowledge such requirements and there are very few cases where fraudulent act is denied on the ground that it does not meet the above requirements. Fourth, since “other deceptive or fraudulent acts” remain in association with the ambiguous concept of fraudulent act under the current Act, determining fraudulency should be based on previous court decisions. Fifth, despite conflicting opinions on whether to acknowledge a fraudulent act when transaction is recharacterized by applying the principle of substantial taxation, it is dogmatic to readily deny the existence of a fraudulent act solely on the basis that the substantial taxation principle is applied. In this case, the fraudulent act requirement should also be considered as having been satisfied.