S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 46, Number 1/4 (2005)
조세법 연구 방법론
Methodology of Tax Law
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.46 No.2, pp. 1-35
- This paper reviews the methodology or canons of interpreting tax statutes and
this paper suggests the conceptual framework of enacting tax statutes and
regulations. The theses of the paper are as follows:
1. The canon of strict interpretation of tax statutes is a mere rhetoric in the
practice of Korean courts. Despite the canon, the courts have often ― albeit
tacitly ― adopted expansive interpretation and also permitted taxation by analogy.
2. How to interpret a tax statute can be mandated by the Constitutional Law
or a statute, but the Korean Constitutional Law or statutes do not have any
provision requiring a strict interpretation. Moreover, based on the language,
history and the structure of the Korean Constitutional Law, there exists no
logical basis to deduct the requirement of strict interpretation from the Law.
3. The doctrine of substance over form is taxation by analogy, invented for
the purpose of establishing an indefinite but inherent limit to the analogy.
4. The maxim that tax law can be written only in statutes is not practicable
in the contemporary world because tax rules are often too complex to exist only
in the form of statutes. A strict adherence to the maxim will make tax statutes
much too complex for human understanding, and such self-standing statutes will
conflict with its twin maxim that tax rules must be clearly intelligible.