대표자-출자자에 대한 법인재산 유출의 세법상 취급에 관한 연구 - 원천징수의무를 지는 법인의 정당한 범위를 중심으로 －

Abstract

This paper mainly focused on withholding obligations of the victim corporation (“victim- corporation”) where it's assets has been embezzled to CEO-shareholders. This paper is searching for basis of the justification and proper range of the victim-corporation taking withholding obligations. The main part of the problem of the issue derives from the Korea Two Top Courts’ Decisions. According to the Supreme Court and the Constitutional Court holdings, the victim-corporation’s withholding obligation is justified when the intention of both victim-corporation and embezzling CEO-shareholder is identified as the same. The Supreme Court held that it must be judged comprehensively because it depends on many facts including details of process of the embezzlement, the degree of control power on the victim-corporation and the corporation’s actions against the embezzling CEO-shareholder such as claim for damages or filing lawsuit against the CEO-shareholder. However, there are problems on these Two Top Courts holdings. First, the main point of the holdings can not give clear behavioral standards to the corporations and the CEO-shareholder taxpayers. Second, the holdings infringes victim-corporation’s property rights, by way of ranging the scope of withholding agents(victim corporation) too widely. This paper proposes legislative improvements simultaneously on both problems. First, on the amount leaked to the CEO-shareholder should be treated as constructive dividends for the completely controlling share- holders and embezzlement for others. It is more reasonable for the corporation to bear the burden of the withholding obligation of the embezzling property only when they are completely under control by the embezzling CEO-shareholder. Because, in this case, the corporation is just used as a tool for the CEO-shareholder, thus the corporations can not claim its property rights to the tax authority. And, because, it would better accords with the responsible property maintenance functions of today’s system of withholding obligations.