조세분쟁해결절차에서 부당성 심사 연구

Tax justice is the basic principle that forms the basis for the exercise of the nation's taxation right, and at the same time, it serves as the guiding principle for the tax law order that functions as the constitutional limitation of the exercise. Therefore, no matter how efficient and sophisticated a country's tax law system or tax system is, if its orientation is unjust and it does not gain consensus among its members, it will inevitably be revised or abolished. Tax justice, an extra-legal concept, is incorporated into the positive law system through the Constitution, guaranteeing its effectiveness and pursuing “the normative conformity of taxation” The ideology of the normative conformity of taxation requires fair and effective responses to not only tax avoidance by taxpayers but also tax dispositions that go against the norms of tax authorities. If there is an irrational taxation that is unacceptable to individual taxpayers caused by loopholes in precise laws and regulations, it is difficult to see that the government's financing through the taxes is justified. It is the duty of the state institution in charge of tax dispute resolution procedure to establish an institutional mechanism that enables taxpayers to quickly and efficiently receive relief from taxation rights that do not satisfy the ideology of the normative conformity of taxation. however, it should be refrained from thinking that the subject of judgment only emphasizes the relief of the rights and interests of the taxpayer, who is a party to the tax dispute, beyond the purpose of protecting the taxpayer as an independent subject of tax legal relations and guaranteeing his legal rights. This is because the viewpoint of taxpayer protection and the viewpoint of remedies for rights need to be differentiated. Thinking from that premise, there is a justification for proceeding so that administrative autonomy and rethinking opportunities are guaranteed to the maximum, with the central axis of operation not on the function of remedies for rights, but on the function of self-control. Then, the significance of the pre-litigation tax dispute resolution system should be found in that it can heal the defects widely by itself by allowing not only the legitimacy of tax disposition but also the control of injustice in the process. “Right to review unjust disposition” can operate as an autonomous corrective device of the administration for 'specific taxation areas' that the judiciary cannot adequately answer under our positive law. However, even though it is stipulated in the Basic Law on National Taxes, the examination of unjust disposition has been hardly utilized. This seems to originate from a strong question as to whether the injustice premised on discretionary actions and taxation, which are evaluated as typical restraining actions, can be conceptually logically combined. However, there is no logical necessity to understand the idea of injustice in relation to the object of the exercise of discretion. This means that injustice under the Framework Act on National Taxes can be considered separately from the notion of 'unjust disposition that violates discretion', which is a conceptual sign of injustice under the Administrative Appeals Act. Looking at it from the unique perspective of the tax law, it is possible to accurately capture the purpose of the Supreme Court, which stated the possibility of controlling unfairness in the tax dispute resolution procedure, even for dispositions, which are binding acts. Also, even if there is a legal concept (injustice) closely linked to extra-legal value judgments, it cannot be seen to mean that such concepts are not embodied in judgments of binding administrative action. The traditional rights protection dogmatic that distinguishes between limited discretionary control and full-scale legal application control is insufficient to respond effectively and appropriately to the complex and amorphous tax legal relationship, and its limits have already been exposed. In the end, it is necessary to establish a new concept of injustice in the Framework Act on National Taxes in order to examine injustice as a screening criterion for tax disposition in the tax dispute resolution procedure. However, work to bridge the gap between 'the tax law that exists' and the 'tax law that should exist' that arises in the tax dispute settlement process must be conducted within the framework of the current law. This is because only when a judgment system based on the positive law is established can the unfairness of taxation be evaluated as an objective indicator to some extent, free from arbitrary judgment based on the judge's subjectivity. To this end, if we look at the implications of Article 18 (1) of the Framework Act on National Taxes, which the legislator designed as a legal norm, the unfair taxation in the tax law system is the realization of tax justice, which has been pre-examined for equity and purpose in a specific tax legal relationship. It can be defined as a tax penalty imposed on a taxpayer by a tax authority for formal compliance with tax laws, even though the obligation has a comparative advantage over the claim for legal stability inherent in tax legalism. Here, the legitimacy of a specific tax disposition is the text of Article 18 (1) of the Framework Act on National Taxes, that is, while satisfying both ① equity in taxation (individual justice) and ② purpose of the relevant clause (collective justice), ③ not unfairly infringing on the property rights of taxpayers. It can be secured when it is not (the principle of taxation). Therefore, the control of unfairness is not satisfied with the satisfaction of the individual definition of the taxpayer, and the subject of examination is whether or not the administration's duty to materialize the public interest is realized. Of course, it is almost impossible to fully quantify and resolve conflicts between highly abstract fundamental values in the tax dispute resolution process in reality. Nevertheless, through a serious process of weighing the tax burden to be imposed on each taxpayer, the pre-litigation tax dispute resolution procedure 'deliberates' and 'deliberates' the decision-making of our social community regarding normative tax administration prior to judicial procedures. It can function as a forum for active participation. At the same time, it will be a way to concretely express 'active administration' in the recently enacted Framework Act on Tax Administration.