세법상(稅法上) 속인주의(屬人主義)와 속지주의(屬地主義)의 대립
In-personam v. Territorial Taxation Dispute

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서울대학교 법학연구소
법학, Vol.50 No.1, pp. 225-264
속지주의속인주의전세계소득 과세국외원천소득외국납부세액 공제자본소유중립성territorial jurisdictionforeign source incomeforeign tax creditin-personam jurisdictionforeign tax deductioncapital export neutrality
Most nations exercise in-personam jurisdiction for residents on their world-wide

income, as well as territorial jurisdiction for non-residents on their domestic

source income. In reality, however, territorial jurisdiction functions as the

virtually governing norm because foreign income can avoid in-personam jurisdiction

simply by taking advantage of the legal formality of incorporating a

subsidiary in a foreign country. The paper analyzes the logical and historical

reason underlying this structure.

Where does the disparity between the norm of worldwide taxation and the

reality of territorial taxation originate from? The paper proffers a hypothesis that

the personal v. territorial tax controversy can be reduced to a conflict between

the populist notion of equity and the class interest of capital owners. First, the

paper demonstrates that worldwide taxation is superior to territorial taxation in

terms of equity as well as efficiency. In particular, it disproves the notion of

capital ownership neutrality recently advanced by Desai and Hines, which

supports territorial principle. The paper then attempts at analyzing why the

territorial principle trumps the worldwide taxation in reality. It shows that the

conceptual difficulty inherent in the latter is not insurmountable, and then

suggests the class interest hypothesis by reference to the history of tax rules.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 50, Number 1/4 (2009)
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