조세범처벌법의 원천징수의무위반죄 법정형의 적정성 여부

Following the amendment of Punishment of Tax offenses Act, Although the same statutory punishment was used for sentencing in non-collection and in non-payment regarding non-fulfillment of obligation to withhold tax, non-payment is now subject to more stringent statutory punishment than non-collection. However, non-payment and non-collection share a common legal nature; both are abstract endangerment offenses concerning the protection of the national legal interest, and are defined as genuine crimes of omission - notwithstanding the foregoing, the statutory punishment for non-fulfillment of the obligation to withhold tax is distinctly stipulated without justifiable reasons. Moreover, even if non-payment involves improper possession of income which needs to be withheld by the state, it is hard to find provisions in the criminal law that apply differential statutory punishment to the possessor of improper income, depending on his/her status as the perpetrator of the crime for the protection of national and social legal interest. This holds true for individuals’ legal interest as well. Furthermore, non-payment and non-collection are both categorized as genuine crimes of omission. While the genuine crime of omission is constituted by “omission” of the required behavior, non-collection fails to fulfill the obligation of collection, thus non-collection carries even more serious illegality than non-payment. Still, non-collection is subject to weaker statutory punishment, which leads to infringement of the principle of the equality.