조세조약의 해석 - 비엔나협약의 기능과 한계, 국내법원 해석의 상호 발전 -

The general rules of interpretation in the 1969 Vienna Convention on the Law of Treaties apply to the interpretation of tax treaties. The logical reasons are different according to the Constitutional principle on the domestic status of international treaties in each country and whether the country is the member of the 1969 Vienna Convention, while there is no exception in concluding that the domestic judges should follow the Vienna Rules in interpreting treaties. This international rule of interpretation, however, should be categorized as so-called a second norm, functioning in a open and somewhat abstract level, so as to ensure the minimum predictability and to enhance trust in the decision of judicial court. The interpretation “in the light of its object and purpose” by article 31(1) of the Vienna Convention results in a request of “common interpretation” that shall be accepted by both contracting countries. Relevant foreign case laws and the OECD Commentaries on its Model can be useful reference materials in that course. Under the structural features that taxes are imposed by domestic laws and the disputes arising from the interpretation of tax treaties are finally handled by domestic judges, the ideal of common interpretation may be achieved not by a simple directive or decision of a single organization but by dynamic discourse through diverse judgments by each domestic courts and updates of OECD Commentaries over the long haul. A series of discussion on beneficial ownership for recent decades shows a representative example about the dynamic development and the mutual interaction of interpretation by domestic courts in different countries. As the common issues of international tax shall be increasing in the future, it is necessary to introduce the academic outcomes along with decisions of Korean courts to the international society and to actively participate in the conversation.