손해배상금의 과세범위 ―소득세제와 소비세제의 성질에 따른 차용개념의 정당한 해석방법―

The issue of damage compensation taxation corresponds to the issue of interpretation of the concept of acquisition. Various problems have been induced under the interpretation of legal provisions since the income tax system stipulates tax requisitions with contents that are somewhat different from the provisions of private law while the consumption tax system completely omitted regulations on damage compensation. This thesis is aimed at establishing valid interpretation standards under the premises of acknowledging the regulatory powers of the currently implemented legal provisions by dividing the scope of taxation of damage compensation into the perspectives of the income tax system and the consumption tax system. Conclusion of the research for this thesis is as follows. First, legal provisions on damage compensation from the perspectives of taxable income and profit in regard to the income tax system consider the principle of substantial taxation, that is, the so called taxable capacity. As such, interpretation must be made appropriately for the purpose by properly utilizing the concepts under the private law by considering the ambiguities in tax law provisions and the interpretation limits of the concept of acquisition. Although there are problems in the legislative validity, damage compensation for non-property rights (rights for the purpose of enjoying benefits with non-economic values such as personal rights and family right) and damage compensation due to illegal activities, etc. cannot be subjected to taxation under the currently implemented interpretation of the legal provisions. However, when considering the normative perspective, etc., it is desirable to interpret the scope of acknowledgement of property right as broadly as possible. ‘Damage on the payment itself, which is the content of the original contract,’ must be limited to and interpreted as the money that has actually and realistically paid, that is, the aspects for which the reduction in net assets is clear due to payment, among the expectation interest, and damage compensation that exceeds this subjected to taxation. By using the concepts under the private law, it is possible to illustrate penalties for infringement, interest paid at the time of returning ill-gotten gains through infringement of contract, and passive damages and reliance interest, etc. as the specific subject of taxation. Second, intentional or material negligence, from the perspective of necessary expenditures and losses in regard to the income tax system, is another expression of normality and is determined on the basis of the business operator. Although the merits of the legislative validity of newly implemented Article 21－2 of the Corporate Tax Act, etc. on the punitive damage compensation can be acknowledged, it is doubtful whether the system of the previous Corporate Tax Act has been considered properly. Although No. 14 of the general provision 19－19 of the Corporate Tax Act is only an administrative regulation, the validity of its contents can be acknowledged on the basis of the need for unified interpretation with the Item 15 of the Clause 1 of the Article 33 of the Income Tax Law and becomes the standard for prima facie (those that must be respected since the contents are valid even though they are not binding on the court or general public since it has not legal binding force formatively) to be considered at the time of taxation disposition. Third, from the perspective of the consumption tax system, the scope of taxation on damage compensation is determined in accordance with the determination of the compensation relation in accordance with the principle of substantial taxation. Although the concepts under the private law functioned as useful tools in the income tax system, they have no major significance under the consumption tax system. It is difficult to univocally determine penalties and/or fine for infringement, ill-gotten gains, active or passive damages, or expectation or reliance interests, etc. As such, determination needs to be made flexibly on the basis of ‘presence of compensation relation’ in each individual and specific issue. Irrespective of pretext, ‘those that compose part of the total value of the goods and services that supplier supplied, and those that can be included in the contents of the corresponding payment’ are subjected to taxation.