변호사 용역 보수와 부가가치세 면세의 논점 ―생산요소의 제공 및 변호사 직역의 특수성을 중심으로―

In the past, the Korean Value-added Tax Law (the “VAT Law”) considered services provided by lawyers to be non-taxable under the VAT Law. However, since the amendments in 1988, the service became taxable due to the reason that there was no need to apply Value-added tax (“VAT”) exemption to the lawyers who are high-income professionals. Due to the nature of the VAT Law, the issues were raised that the supply of personal services constitutes double taxation, but it is not easy to find studies that focus on this issue. Accordingly, this study analyzed whether the provision of production factors, including personal service, is subject to double taxation due to the nature of the VAT. In addition, it is confirmed that the assessment of the VAT on the supply of personal services with business value is not contrary to the nature of the VAT or is not a double taxation. On the other hand, after confirming that a judgment on ‘businessperson’ is necessary even when providing personal services under the VAT Law, it is reviewed whether the position of precedents denying the commercial nature of lawyers and the practical perspectives on the concept of businessperson are at odds with each other. As a result, although there are aspects hard to accept in the Supreme Court ruling regarding the commercial nature of lawyers, as a businessperson under the VAT Law can be recognized separately, it is confirmed that recognizing the lawyer as a businessperson is possible in legal terms. The precedents do not recognize success fees for criminal case services provided by lawyers and emphasize the integrity and fairness of criminal justice procedures. Given this, it is advisable to consider whether it is reasonable to stipulate that the lawyers’ criminal case-related service is subject to VAT exemption. In order to stipulate VAT exemption as a policy, the final consumer’s ability to pay and the nature of the service must be taken into consideration, and competitive neutrality must not be undermined. Accordingly, this study confirms that the VAT exemption provisions under the VAT Law are for the final consumer rather than the businessperson, and the burden of VAT in criminal cases is likely to be passed on to the client. Considering these points comprehensively, it seems reasonable to provide VAT exemption for legal service fees in criminal cases. Considering these points comprehensively, it seems reasonable to provide VAT exemption for legal service fees in criminal cases.