조세포탈범에 있어 부정행위의 판단기준에 관한 연구―미국, 일본의 제도와 비교를 중심으로―

The purpose of this study is to identify problem areas and seek improvements in our current system through comparative study with the U.S. and Japanese one focusing on “fraudulent act” which is an element of criminal tax evasion. In the current Korea tax code, the criteria for judging the element of ‘fraudulent act’ in tax evasion is to determine whether there was “active concealment.” In the U.S. and Japan, the subjective elements, such as “the intent to evade tax”, as well as the objective element of the action of concealment, are used as criteria for judging unlawfulness in under-reporting or non-reporting tax under the self-assessment system. However, in Korea, the current method is still focused only on ‘active concealment’ which was objective element, even if the Korean tax system was changed into the self-assessment system more than 20 years ago. Furthermore, unlike the U.S. and Japan, though ‘fraudulent act’ is an abstract and variable concept, it is defined in the criminal statute as a subconcept of a detailed version defined as “an active act that makes tax levying or collecting significantly difficult or impossible.” The following improvements are proposed by reflecting on the U.S. and Japanese schemes of this issue on the judgment of unlawfulness. First of all, our court interpretation should include “intent to evade a tax” as an explicit requirement with regard to the element of fraudulent act in criminal tax evasion and actively use it as a judgment criteria much like the U.S. and Japan. The role of restricting punishment for antisocial tax evasion is not limited to defining activities of concealment (the criteria for "active behavior"), but also to fairly limit the subject of criminal punishment. Secondly, since under-reporting and non-reporting tax are a decisive factor in criminal tax evasion under self-assessment system, we should focus on the falsely reporting activity when judging unlawfulness as done in the U.S. and Japan. Under the self-assessment system, tax bonds are confirmed by taxpayers' voluntary reporting, so the structure of the evasive activity and responsibility to report are different from the ones under government-assessment system. In accordance with the self-assessment system, even if “active concealment” is absent, there needs to be determination on the criminality of an intentional false reporting. If there is such criminality, the focus should shift from “active concealment” to the false reporting. Also, the current definition of fraudulent act with detailed version in criminal statute needs to be amended or avoided to develop case law such as in Japan and the U.S. that flexibly copes with various attempts of tax evasion.