도덕적 직관이 나타나는 대법원 조세 관련 판결과 조세심판원 결정에 관한 연구

Social intuitionism proposed that human has the innate moral sense which is the capacity to decide what is morally right or wrong. According social intuitionist Jonathan Haidt, the origin and its variation of the moral sense are based on six innate, modular foundations, which are Care/Harm, Fairness/Cheating, Loyalty/Betrayal, Authority/Subversion, Sanctity/Degradation, and Freedom/Oppression. He also emphasizes that public decisions are made by the moral intuitions and the strategic reasoning only plays the limited role of legitimizing that moral intuition. This study intends to show that such proposition of social intuitionism may work in the tax law interpretations made by the Supreme Court and the Tax Tribunal, though the tax law is governed by the principle of no taxation without law. For example, Suwon Crossroad verdict(2011du21447) canceled the taxation made by the tax authority to the donor who had made donations of 90% shares of his company Suwon Crossroad, which were 85% higher than the exemption threshold of gift tax. This verdict were made in accordance with the moral intuition of Care/Harm module rather than the clause of the Gift Tax Act. Such decisions of prevailing of the moral intuition over the clause of the tax act were usually made when the result following the grammatical interpretation of the clause of tax act does not correspond to the moral intuition. In some cases, moral intuitions are more powerful than the clause of the tax act. Therefore, it is crucial to understand the moral nature of human even in the tax law area.