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헌재 2013. 5. 30. 선고 2011헌바360 2012헌바56 공보 [구 교통세법 제17조 제8항 위헌소원]
[공보(제200호)]
Main Issues

Whether the portion of "foreign navigation vessel" in Article 17 (8) 4 of the former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993; Act No. 8138 of Dec. 30, 2006; Act No. 8138 of Dec. 30, 2006) which collects traffic tax refunded or deducted from the shipper when it is confirmed that the goods which were refunded or deducted from the traffic tax had not been carried in the overseas navigation vessel due to use in the overseas navigation vessel violates the principle of self-responsibility (negative)

Summary of Decision

Where taxable goods are not used for the intended purpose despite being refunded or deducted from traffic tax on the grounds that they are used for overseas navigation vessels, the collection of traffic tax later is justifiable in light of the purport of the exemption from taxation or refund or deduction of oil provided for overseas navigation vessels.

Inasmuch as a shipper voluntarily submits a loading certificate confirming that he/she has used it for the prescribed purpose, it cannot be deemed that he/she is not responsible for using it for any purpose other than the original purpose. Since the shipper has the right to make decisions or control that can be used for the renewal of the contract or the allocation of quantities by evaluating the attitude of business performance of oil supply companies, he/she is in the position of managing the supplied goods through the right to manage and supervise oil supply to an oil supplier until the supplied goods are supplied to an overseas navigation vessel, and is responsible for managing and supervising oil outflow by an oil supplier. Therefore, it cannot be deemed that collecting traffic tax refunded from the shipper in cases where the oil supplied for the use of an overseas navigation vessel is used for

Documents subject to adjudication;

Part concerning "foreign navigational vessels" in Article 17 (8) 4 of the former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993, and amended by Act No. 8138 of Dec. 30, 2006)

[Reference Provisions]

Article 10 of the Constitution

Articles 3 subparag. 1, 7(1), 9(1), and 15(2) of the former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993, and amended by Act No. 8138 of Dec. 30, 206)

Reference Cases

Constitutional Court Decision 98Hun-Ba7 on March 30, 200, Supreme Court Decision 12-1, 315, 323

Constitutional Court Decision 2002Hun-Ga27 June 24, 2004, Supreme Court Decision 16-1, 706, 715

Constitutional Court Decision 201Hun-Ga8 on February 23, 2012, Supreme Court Decision 24-1Sang, 12

Supreme Court Decision 2009Du15104 Decided September 29, 201

Supreme Court Decision 2009Du3682 Decided October 27, 2011

Supreme Court Decision 2009Du14972 Decided October 27, 2011

Parties

[Defendant-Appellant] Kun ○○○ Co., Ltd., the Gu ○○○, the Gu ○○○ Attorneys-at-Law, et al.

In the relevant case, Supreme Court Decision 2009Du14972 (201HunBa360) Seoul High Court Decision 2009Nu25455 (201HunBa56) revoking disposition imposing traffic tax (201HunBa56)

Text

In Article 17 (8) 4 of the former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993, and amended by Act No. 8138 of Dec. 30, 2006), the part concerning "foreign navigation vessel" in Article 17 (8) 4 of the same Act shall not be unconstitutional.

Reasons

1. Case summary and the object of the trial;

A. Case summary

(1) 201HunBa360 case

(A) On February 5, 2008, ○ Energy Co., Ltd. (hereinafter “Appellant”) merged with ○○ Oil Co., Ltd., and changed the trade name to △△△ Co., Ltd. on January 1, 201; hereinafter “○ Energy Co., Ltd., ○○ Oil Co., Ltd, ○○ Oil Co., Ltd., Ltd, and △△△

From January 9, 2003 to October 27, 2004, 2004, the oil service provider is 000 supply chain oil companies, etc., and ○○○ Green Co., Ltd., a ship oil supplier, etc., were already refunded traffic tax and education tax already paid due to the reason that 23,901,978 liters had been used in an overseas navigation vessel.

(b)However, on March 20, 2006, 8,677,121,820 won (including additional taxes) total of traffic tax, education tax, 1,000,862,030 won (including additional taxes) was corrected and notified to the claimant on March 20, 2006.

(C) The petitioner filed a lawsuit seeking revocation of the above corrective and notification disposition (Seoul High Court 2007Guhap5770), and filed a petition for adjudication on the constitutionality of “foreign navigation vessel” in Article 17(8)4 of the former Traffic Tax Act (amended by Act No. 4667, Dec. 31, 1993; Act No. 8138, Dec. 30, 2006); however, the petitioner filed a petition for adjudication on the constitutionality of “foreign navigation vessel” in Article 17(8)4 of the former Traffic Tax Act (amended by Act No. 8138, Oct. 27, 201; Act No. 11014, Nov. 25, 2011; Act No. 11020, Oct. 25, 2011).

(2) 2012HunBa56 instant case

(A) The claimant (at the time 000 m2.0 m.) was already paid traffic tax and education tax due to the reason that 00 m3/100 from January 9, 2002 to October 31, 2003, 7,189,761 m2 was used in an overseas navigation vessel.

(B) However, on June 1, 2007, the claimant, who was supplied oil by the claimant with forged documents and did not supply it to the overseas navigation ship but illegally removed it to the land intermediary wholesalers, etc., was notified of the total of 547,426,570 won of traffic tax (including additional tax), 45,589,500 won of education tax (including additional tax), and the total of 3,003,003,087,160 won of traffic tax on September 1, 2007, and the total of 259,414,730 won of education tax (including additional tax).

(C) The claimant filed a lawsuit seeking revocation of the above corrective and notification disposition (Seoul High Court 2008Guhap4033) and filed a petition for adjudication on constitutional complaint on February 9, 2012, when the appeal court (Seoul High Court 2009Nu25455) had been pending in the appellate court (Seoul High Court 2009Nu25455) and filed a petition for adjudication on constitutional complaint on "foreign navigation vessel" in Article 17 (8) 4 of the former Traffic Tax Act (amended by Act No. 4667, Dec. 31, 193; Act No. 8138, Dec. 30, 2006).

(b) Object of adjudication;

The subject of the instant trial is whether the part concerning "foreign navigational vessels" in Article 17 (8) 4 of the former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993, and amended by Act No. 8138 of Dec. 30, 2006, hereinafter "the Act") violates the Constitution, and the subject of the adjudication and related provisions are as follows.

【Provisions Subject to Adjudication】

former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993, and amended by Act No. 8138 of Dec. 30, 2006)

(8) Where it is confirmed that the goods which were refunded or deducted pursuant to the provisions of Article 17 (2) 4 have not been used for the prescribed purpose, the traffic tax refunded or deducted shall be collected.

[Related Provisions]

former Traffic Tax Act (amended by Act No. 4667 of Dec. 31, 1993, and amended by Act No. 8138 of Dec. 30, 2006)

Article 17 (Deduction and Refund of Amount of Traffic Tax) (2) If the goods or raw materials, on which traffic tax has already been paid or is already payable, fall under any of the following subparagraphs, the amount of traffic tax already paid shall be refunded under the conditions as prescribed by the Presidential Decree:

4. Where taxable goods are used as raw materials for medical treatment, manufacturing medicines, fertilizers, or manufacturing agricultural chemicals, and where they are used by aircraft, foreign navigation ships, deep sea fishing ships, foreign diplomatic missions in Korea or other equivalent institutions;

2. A summary of the claimant's assertion;

The claimant is bound to enter into a maritime oil supply service contract with a company registered as a ship oil supply business in order to supply oil to an overseas ship without being registered as a ship oil supply business. After the claimant takes out the oil, the claimant does not have any legal obligation or authority to manage or supervise whether the oil in question is used in the overseas ship. However, it is against the principle of self-responsibility to collect the already refunded or deducted traffic tax by holding the applicant liable for the oil not used in the overseas ship.

3. Determination

(a) Persons subject to traffic tax under Article 1 (1);

In this case, traffic tax is refunded or deducted on the ground that traffic tax is used for overseas navigation ships, but the goods have not been used for overseas navigation ships.

Article 24(5) of the former Enforcement Decree of the Traffic Tax Act (amended by Presidential Decree No. 19897, Feb. 28, 2007; hereinafter “Enforcement Decree”) stipulates that the traffic tax shall be collected from a person who has not used the goods for the prescribed purpose, if it falls under Article 17(8) of the Act.

On the other hand, Article 3 subparagraph 1 of the Act provides that a person who manufactures and takes out goods shall be liable to pay traffic tax, and Article 7 (1) of the Act provides that "the person liable to pay traffic tax under Article 3 subparagraph 1 of the Act shall submit to the head of the tax office having jurisdiction over the manufacturing place by the end of the following month a return stating the quantity and price of the goods taken out from the manufacturing place each month, calculated tax amount, tax unpaid, exempted tax amount, deducted tax amount, refunded tax amount, tax amount, etc." Article 9 (1) of the Act provides that "if a return under Article 7 is not submitted or there is any error or omission in the details of the return, the head of the competent tax office or customs office shall determine or correct the tax base and tax amount thereof." In addition to the overall system of this Act, it is reasonable to view that there is no reason to regard the case of conditional tax exemption benefits in advance and the case of refund or deduction that benefits are granted ex post facto (see Supreme Court Decisions 2009Du3682, Oct. 27, 2011>

B. Whether the provisions subject to adjudication are unconstitutional

(1) Criteria for unconstitutionality review

The right to self-determination or general freedom of action derived from the right to pursue happiness prescribed in Article 10 of the Constitution shall respect the decision-making and selection of a person who is distinct and responsible, and the responsibility for such right shall be borne by him/her. The principle of self-responsibility functions as the limitation theory of self-determination right and the limitation principle of responsibility, without bearing responsibility for those who function as a ground for his/her responsibility and who are not determined or are unable to make a decision at the same time, and also functions as the limitation principle of responsibility for the scope of responsibility to mean that the degree of responsibility is limited to the result of his/her own decision or to the part having a correlation with him/her. Such principle of self-responsibility is not the principle that reflects human liberty and flexibility, and human dignity, but rather the basic principle of modern law is naturally inherent in the rule of law (see, e.g., Supreme Court Decision 202Hun-Ga27, Jun. 24, 2004; Supreme Court Decision 16-1, 706, Jul. 15, 2005).

The key issue of this case is whether it violates the principle of self-responsibility under the Constitution to collect traffic tax refunded or deducted from the shipper when the goods subject to traffic tax refund or deduction are not brought into an overseas navigation vessel on the ground that they are used in an overseas navigation vessel.

(2) Violation of the principle of self-responsibility

(a) The basic system of traffic tax;

Basicly, traffic tax is indirect consumption tax and individual consumption tax which imposes the consumption of oil on an overseas ship, and it is required to pay in advance the goods to the shipper when the goods are manufactured and taken out for the convenience of tax collection. Therefore, when the taxable goods are used in an overseas ship, the amount of traffic tax already paid shall be refunded to the payer. If the traffic tax has not been refunded or deducted on the ground that the taxable goods are used in the overseas ship, it is justified in the purport of the traffic tax exemption or refund or deduction system.

(B) Documents attached to the application for refund

In order for the shipper to supply oil to an overseas ship and to receive traffic tax refund or deduction, he/she shall submit a shipment permit issued by the head of the competent customs office at the time of applying for the refund or deduction (Article 24(1) and (2)4 of the Enforcement Decree). With respect to the confirmation of carrying-in (loading) export goods to be submitted to obtain a shipment permit, a person may submit a confirmation of loading with a supplier and the captain or his/her agent to obtain the confirmation of loading permission or submit a confirmation of re-verification to the customs office, which is deemed necessary by the former Public Notice on the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Act No. 8233 of Jan. 11, 2007) under the former Public Notice on Special Cases Concerning the Refund of Customs Duties, etc. Levied on Raw Materials for Export (amended by Act No. 8239 of Oct. 7, 2005).

The above notice provision was amended by Korea Customs Service Notice No. 1999-42 of October 28, 1999 (amended by November 8, 1999) and provided that the previous notice provision shall have the actual shipment confirmed by the head of the competent customs office;

The method is converted to a document submission review to the effect that the company's burden is reduced by converting the company's autonomous review and regulation into a regulation by the agency.

In light of the fact that it is necessary to confirm the shipment of the goods by the supplier (the shipper) in the course of the preparation of the loading confirmation document, and that the shipper is the shipper who is responsible for managing and supervising the delivery of the goods indicated in the loading confirmation to be used for the prescribed purpose and is not used for the prescribed purpose, the shipper cannot be exempted from liability for neglecting the shipment confirmation procedure. In other words, the traffic tax refund for the shipper is done in trust of the loading confirmation document confirming that the shipper was used for the prescribed purpose, so long as the shipper submitted the loading confirmation document, it shall not be held liable for any use other than the prescribed purpose.

(C) Traffic tax system

The claimant argues that the tobacco exempted from tobacco consumption tax is similar to the case where the person who was supplied with the tobacco is not used for the relevant purpose. However, unlike tobacco in the case of traffic tax (see Article 12 of the Tobacco Business Act), there is no provision that limits the sale eligibility of the shipper for the consumer. Moreover, the relationship with the oil supplier used by the shipper of traffic tax to supply oil to an overseas navigation ship is merely a service contract. It is a case where the taxpayer directly entrusts the related business to the taxpayer to take advantage of the expansion of the area of the act (see Supreme Court Decision 2009Du15104, Sept. 29, 201). Since the shipper has the right of decision-control or control that can be used for the renewal of the contract or the allocation of the quantity by evaluating the attitude of the oil supplier's performance of duties, the shipper is in a position of management and supervision over the oil supplier until the supplied goods are supplied to an overseas navigation ship through the right of management and supervision over the oil supplier.

In addition, since there is no provision that imposes an obligation to place a separate mark of exemption from tobacco consumption tax unlike tobacco consumption tax-free goods, it is difficult to deem that the shipmentr provided oil to an oil supplier for the purpose of using the overseas navigation vessel.

(D) Comparing with conditional tax exemption

According to Article 15(2) of the Act and Articles 17(2) and 23(1)3 of the Enforcement Decree of the Act, the traffic tax shall be collected from the shipper or the importer of the oil used for overseas navigation vessels, and the traffic tax shall be collected from the shipper or the importer of the oil in cases where the purpose of use is changed or transferred after the oil was brought into the port. Article 15(2) of the Act provides that the conditional tax exemption provision of Article 15 of the Act provides that the traffic tax shall be exempted first for oil brought out to the overseas navigation vessel and the traffic tax shall be exempted. Article 17 of the Act provides that both cases where the traffic tax has already been paid or is refunded or deducted are different when the traffic tax has already been refunded or deducted. Thus, there is no reason to regard the two differently in collecting the tax exempted or refunded or deducted.

In addition, in light of the provisions on conditional tax exemption and the provisions of Article 24(5) of the Enforcement Decree of the Regulation on Conditional Tax Exemption, traffic tax under Article 24(5) shall be collected from the shipper only when oil is not brought into an overseas ship but used for other purposes. On the other hand, in case where oil legally brought into an overseas ship remains without being used for the prescribed purpose in the overseas ship concerned, the head of the competent customs office may collect traffic tax from the shipper, such as the owner of the overseas ship, etc., so

(E) Under Article 106-2 of the Restriction of Special Taxation Act, the claimant asserts that, when farmers and fishermen, etc. are exempted from traffic tax, etc. on oil used for agriculture, etc., those farmers and fishermen, etc. do not use tax-free oil for agriculture, etc. or those who are not farmers and fishermen, etc. are subject to tax exemption by illegal means, the claimant should additionally collect the amount of tax reduced or exempted against such

The supply of tax-free petroleum to farmers, fishermen, etc. is that farmers, fishermen, etc. filed an application for the tax-free petroleum purchase card with the Association and received the tax-free petroleum purchase card by submitting the tax-free petroleum purchase card to the gas station, and thus the shipper (petroleum sellers, etc., such as gas stations) will take out the tax-free petroleum purchase card appropriately issued. If farmers, fishermen, etc. use it for other than the intended purpose, it will be collected from the shipper due to the problems after the entry. This is in line with Articles 12 through 15 of the Act, which stipulates the subject of collection after entry as the shipper (Article 12(4) of the Act on Shipping without Payment, Article 13(4) of the Export and Military Tax Exemption, Article 15(2) of the Conditional Tax Exemption Act).

In addition, it is unreasonable that the claimant bears liability due to the fraudulent act of the third party although he/she does not have any profit belonging to the claimant due to the refund or deduction of the traffic tax.

However, in the case of indirect taxes such as value-added tax, individual consumption tax, traffic tax, etc., the issue of whether the other party to the transaction who is supplied with the taxable goods has the status of as a de facto taxpayer under the tax law and is not in the position of a taxpayer under the tax law, and how to whom the tax should be imposed or transferred is an area in which private autonomy is permitted, and is determined by the transactional agreement or transaction practice of the transaction party, and is not a matter determined by the tax law governing the rights and obligations of the State and the taxpayer (see, e.g., Supreme Court Decision 98HunBa7, Mar. 30, 200; Supreme Court Decision 12-1, 315, 323; Constitutional Court Decision 201Hun-Ga8, Feb. 23, 2012; Supreme Court Decision 2011Hun-Ga1, No. 24-1, No. 12, etc.) cannot be exempt from the grounds for the claimant’s liability to pay the traffic tax on overseas ships.

(F) As seen above, the person carrying out taxable goods is not the direct subject of the traffic tax imposed on the goods for which the traffic tax was refunded, but the person responsible for the violation. Thus, if oil provided for the use of overseas navigation ships is used for any other purpose before entering overseas navigation ships, it cannot be deemed that the collection of traffic tax from the shipper is contrary to the principle of self-responsibility.

4. Conclusion

Therefore, the clause to be tried does not violate the Constitution, and is so decided as per Disposition by the assent of all participating Justices.

Judges

Justices Park Jong-chul (Presiding Judge) Lee Jong-sung Kim Lee-sung, Lee Jin-sung Kim Chang-sung ( unable to affix his/her signature and seal on an overseas business trip), Cho Jong-ho, Cho Jong-won, Cho Jong-won