조세심판전치주의와 가구제(假救濟)에 대한 헌법적 검토(Ⅰ) ―연혁적 검토 및 헌법상 재판청구권과의 관계 등을 중심으로―

The administrative adjudication proceedings operate to provide remedies to parties, self-control of administrative agencies, and decrease burdens of the courts. In principle, the Korean Administration Litigation Act adopts an optional administrative adjudication proceeding system. The Korean National Tax Basic Act, however, takes the mandatory tax-administrative adjudication proceeding system, with an extremely narrow scope of exceptions. Furthermore, the Act encompasses the doctrine of non-suspension of execution concerning decisions, in which the non-standing organizations are given the power to grant preliminary remedies to parties. Tax disputes generally involve expertise in the field, technical knowledge, a vast amount of data and information, and repetitiveness. This paper focuses on the mandatory tax-administrative adjudication proceeding and its preliminary remedies with a specific focus on its relation to the historical background and developments and the Constitutional right to a fair trial. This paper discusses that due to the implementation of the optional administrative adjudication proceeding system, the current administration litigation system does not infringe the Constitutional right to a fair trial. On the contrary, the adopted mandatory tax-administrative adjudication proceeding system must be reviewed and analyzed to confirm the validity of such a system. Whether to implement the mandatory tax-administrative adjudication proceeding system or the doctrine of non-suspension of execution is a legislative decision. However, when the related legislation infringed the right to a fair trial guaranteed in the Constitution or the constitutional principle of quasi-judiciality prescribed in Article 103, Clause 3 of the Korean Constitution, then such a system should not be approved. The grounds and extent of how tax disputes are resolved can differ in each country. These discrepancies exist because a wide variety of constitutional provisions, different legislative policies, and distinctive social and cultural backgrounds exist among various countries. When analyzing constitutional dimensions of different countries, comparisons related to the similarities and differences should be considered since the constitutional provision's formalities and contents are of significance. Article 103, Clause 3 of the Korean Constitution is unique from the perspective of comparative law research. Consequently, with respect to the mandatory tax-administrative adjudication proceeding system, adopting a foreign country's legal approach on the issue will be problematic. A foreign country's legal framework to this issue will likely have developed under a unique doctrinal premise. In addition, existing discussions criticize Japanese tax dispute resolution system as having excessive restrictions on the taxpayers' Constitutional right to a fair trial and its overprotection of tax agencies. This approach has impacted Korea for a considerable time. There are many cases concerning judicial review over tax laws or issues about administrative interpretations of tax laws in Korean practice. Under the Korean Constitution, the British Tax Chamber of the Tribunal system, established as a non-departmental public body, cannot be established in Korea. As a result, under the current mandatory tax-administrative adjudication proceeding system, upholding the taxpayers' Constitutional right to a fair trial and, at the same time, complying with the constitutional principle of quasi-judiciality (Article 103 Clause 3 of the Constitution) is a challenging task. Tax litigation involves a declaratory action, which pursues the confirmation of the non-existence of tax liabilities. Therefore, abuse of discretions by tax authorities cannot be an issue in tax cases. Instead, only the illegality of the disposition of tax agencies can be an issue in the case. The tax payment by self-assessment system, the U.S. tax payment approach, has been introduced and established for several decades in Korea. From the preceding reasons, legislatures should adopt the optional tax-administrative adjudication proceeding system to avoid the unconstitutionality of the current tax-dispute-resolution system. If the necessary legislative process is delayed further, a broad exception of the mandatory tax-administrative adjudication proceeding system is crucial at this point. Considering the urgency inherent in the current tax investigation system, if exceptions were not adopted through legislation, mandatory tax-administrative adjudication proceeding system of tax investigation system is likely to invade upon the taxpayers' Constitutional rights guaranteed for a fair trial. Furthermore, the tax-dispute-resolution system must be reframed to protect taxpayers' Constitutional rights pertaining to a fair trial and comply with Article 103, Clause 3 of the Korean Constitution. Foreign legal systems on the issue can be explored to derive an effective legal framework that can improve Korea's tax system.