‘조세포탈의 목적’의 체계적 지위에 관한 고찰 - 사기 기타 부정한 행위의 적극적 은닉의도를 중심으로(2) -

Tax evasion is a crime committed by evading tax with fraud and other unlawful acts. The Supreme Court provides the basis for a chaotic situation as it has been inconsistent with whether the purpose to evade tax is a necessary element to constitute the crime of tax evasion. Thus, this paper aims to prove, in light of the each country’s legislation cases and systematic status -which is to determine where “the purpose to evade tax” lies as a prerequisite for tax evasion- the validity of the Supreme Court's use of the term of” the purpose to evade tax” when it uses the same term differently depends on the situations. Since tax evasion is Absichtsdelikte, not Rechtsbeugung, to find one is guilty of tax evasion, only the lowest level of culpability is required that is willful negligence, instead of specific intent to evade tax. On the other hand, the purpose to evade tax with fraud and other unlawful acts is a prerequisite to be interpreted as an illegal practice, the purpose shall convey the intent to deceive the National Tax Service that is prohibited as Handlungsunwert. The Supreme Court's remarks on “with the purpose of evade tax”, “from the purpose to evade tax” and “the purpose to evade tax” were all intended to have the same meaning that constitute as fraud and other unlawful acts. Regardless with the effort of the Court to resolve such confusion, the Court started to use a new term “affirmative intent to conceal” to draw a distinction from the purpose to evade tax that resulted in tax reduction and the purpose to evade tax with fraud and other unlawful acts. Nevertheless, the practitioners and scholars have failed to pay attention to this change. In light of recent two Supreme Court cases, in one case where one opened a bank account under another's name to defend the management rights and in the other case, where one opened a bank account under another’s name to register for an IPO which resulted in tax reduction, the Court ruled that in both cases, the person is not guilty of fraud and unlawful acts if the person had other intent when the person concealed the income that resembles to the affirmative intent to conceal. In other words, the Court makes it clear that if one conceals income with other intent, not an affirmative intent to conceal, tax reduction is not equal to tax evasion. As such, affirmative intent to conceal in fraud and other unlawful acts is an intent to deceive the National Tax Service which shall be distinguished from the purpose to evade tax that resulted in tax evasion. In our current system of interpreting tax evasion under the theory of Vorsatz, the concealment of income where one foresaw (predicted) the tax reduction as a consequence of tax evasion is considered as willful negligence and such willful negligence is sufficient prerequisite to find one’s culpability. Therefore, in consideration of the aforementioned system, in finding one’s guilty of tax evasion, the importance of proving affirmative intent to conceal when one conceals his or her income with the intent to deceive National Tax Service shall be emphasized even more.