조세포탈죄에서 납세의무 관련 포섭의 착오의 효과

Tax evasion is a typical administrative norm-subordinate crime, and in tax evasion, the tax obligation is a normative component. What is the object of intentional recognition in the normative component is connected to the question of whether the error of interpretation of the normative component should be viewed as mistake of fact or mistake of law. Not only in Korea but also in Germany, the view that the error of interpretation related to the normative component is a mistake of law is strongly supported. Since tax evasion is a blank criminal law, and in tax evasion, specific tax obligations are a normative component, it is appropriate to understand the error of 'the existence and satisfaction of specific tax obligations' as a constituent error that eliminates intention. In determining whether the requirement of dolus eventualis is fulfilled, German judicial precedents distinguish between ordinary people and merchants, consider whether there was a purpose of tax avoidance, and consider whether the actor fulfilled the obligation to inquire required by the actor's occupation group. Korean judicial precedents also determine whether there is a justifiable reason for not recognizing the tax obligation in determining whether the actor had conducted with intention. These judgment structure and standard are similar to the judgment structure of “whether there is a just cause for the mistake of law”, but the Supreme Court does not say that the actor's mistake is a mistake of law, but only judges that there is “intention (or culpability)” by examining whether there is a justifiable reason for the actor not recognizing the tax obligation.