세무조사제도에 대한 비교법적 검토와 시사점 — 세무조사 녹음권과 행정조사기본법을 중심으로 —

Tax investigation is ‘hoheitliches Realakt’ under the administrative law, and precedents choose the latter as to whether to fight the case itself or the tax procedure if there is a defect. In addition, as an issue in public law, there was a controversy over whether to recognize the tax investigation decision, which is the previous step, as a disposition, but the precedent recognizes it. However, until now, as an issue in the public law review of tax investigations, there have been few cases in which tax authorities' excessive discretion and room for interpretation have been raised as issues in tax investigation procedures based on the viewpoints of violation of the principle of due process and procedural tax legalism. It is only supplemented from the viewpoint of protecting the rights of taxpayers. In tax administration practice and tax law, the issue of overlapping investigations in relation to due process was intensively dealt with, and although the prohibition of overlapping investigations was stipulated in the Framework Act on National Taxes, there are still unresolved issues. The cause of these problems is that the concept of tax investigation is not clear, and so far, the courts have only made practical decisions on a case-by-case basis. In this paper, a comparative legal review of tax procedural legal regulations and systems for tax investigations in the US, UK, and Germany is attempted, and specific regulations and exceptions for each stage are much more detailed than Korea's tax investigation system. In addition to these general problems, recent conflicts related to the guarantee of recording rights during tax investigations are introduced, and comparative legal considerations are attempted to solve these problems. According to the results of a comparative study on the systems of the United States and Taiwan, it is judged that the right to record in general tax investigation procedures, excluding criminal procedures, needs to be allowed given that the right to record tax investigation is specifically guaranteed along with sufficient procedural legal provisions. Moreover, it highlights the unclear basis on which the provisions of the Framework Act on Administrative Investigation, which are guaranteed in administrative investigations, do not apply to tax investigations. Article 3, Paragraph 2, Subparagraph 5 of the Framework Act on Administrative Investigation is unconstitutional on the grounds that there is a need to ensure that the right to record tax investigation is more guaranteed for the protection of taxpayers in the area of ​​tax administration than in the area of ​​general administrative law, and the need for amendment.