조세소송에서 공법상 당사자소송의 활용에 관한 연구 - 확인소송을 중심으로 -

초록

The current administrative litigation has a litigation structure centered on appeals against dispositions. However, the traditional vertical structure of administrative law relations is gradually changing closer to the horizontal structure, and the fields and means of administrative actions are gradually diversifying. It has reached a point where it cannot be effectively and properly remedied. Accordingly, efforts to overcome the limitations of the administrative litigation structure centered on disposition in public law were opposed to the theory of expanding disposition and the use of party suit. In light of the tendency of the revision of the Administrative Litigation Act to cover various types of administrative actions such as acts of factual power in the name of disposition, the theory of disposition expansion seems to prevail. However, expectations for the use of party suit, especially Confirmation action, are growing. A Confirmation action can intervene in a dispute at an early stage compared to a formation litigation, and has a so-called preventive function that can prevent the occurrence or seriousness of a dispute in advance only by ideological confirmation of the rights and legal acts that are the object of the dispute. It is expected to overcome the limitations of cancellation action centralism. On the other hand, although theoretical discussions on the utilization theory of party suit are active in public law, the discussion on application in individual laws is still insufficient. This paper contains a discussion on the applicability of party suit (especially Confirmation action) in tax litigation closely related to people’s property rights. First, as a premise of the theory of using party suit, in relation to the interests of the lawsuit in Confirmation action, if the defendant makes the plaintiff’s status unstable when judging the maturity of the dispute, that is, if the defendant denies the plaintiff’s legal status or does not conform to that status. In the case of claiming a non-confirmation status, it is interpreted that it is sufficient to file a lawsuit at a time when anxiety or risk materializes. Next, as the requirements for Confirmation action in tax litigation, the qualifications for the selection of Confirmation action (ie, the complementarity of Confirmation action), the eligibility of the object of confirmation, and the benefits of immediate confirmation are dealt with in detail. As a more specific issue, regarding the use of Confirmation action in tax litigation, litigation seeking confirmation of the satisfaction of taxation requirements under the Tax Entity Act before confirmation of tax obligations, and litigation seeking confirmation of taxation requirements in the Tax Entity Act after tax liabilities are finalized It deals with the possibility of litigation to confirm the non-existence of tax obligations in the case of tax and withholding tax. Utilization of the party’s lawsuit before the settlement of tax obligations deals with disputes related to the confirmation of the applicability of taxation requirements, administrative rules related to tax laws and taxes, or the time of inquiry. Exclusivity of non-existence Confirmation action and correction request and debt non-existence litigation are dealt with. In the case of withholding tax, which is automatically confirmed and litigation for non-existence of tax obligation, the tax notice on withholding tax is identified as a formal administrative disposition, and at this time, it is related to the tax notice. Therefore, the withholding agent reviews the possibility of filing an appeal and a lawsuit to confirm the non-existence of the duty to pay. We considered the possibility of a lawsuit to confirm the absence of debt.

키워드