소득세법 시행령 제16조 제1항의 위헌성연구 - 국외근로자의 비과세 급여의 범위와 관련하여 - = A Study on the Unconstitutionality of Article 16 (1) of the Enforcement Decree of the Income Tax Act - In connection with the scope of non-taxable wages for workers abroad -

다국어 초록 (Multilingual Abstract)

Article 11(1) of the Constitution of the Republic of Korea, ‘All citizens shall be equal before the law,’ guarantees the general principle of equality. The criteria for the scrutiny of unconstitutionality in regard to the constitutional right to equality apply the principle of arbitrariness prohibition and the principle of proportionality. The principle of equality in taxation is a principle to realize tax justice by embodying the constitutional provision of the right to equality in the tax act. This study looked into the criteria for the scrutiny of unconstitutionality in regard to the right to equality and the principle of equality in taxation, examined whether discriminatory treatment in the scope of non-taxable wages for workers abroad is justifiable, and analyzed whether the discriminatory treatment violates the constitutional principle of equality. The workers abroad include general workers working on overseas land, maritime workers on a pelagic fishing vessel or a vessel serving an overseas route, and workers providing labor in an aircraft serving an overseas route. The scope of non-taxable wages for workers abroad is based on Article 12 (Non-Taxable Income) of the Income Tax. The scope is prescribed by Article 16 (1) 1 (Scope of Non-Taxable Wages for Workers Abroad) of the Enforcement Decree of the Income Tax, which is a Presidential decree, and has been applied in the same way for a period of 30 years from 1976 when the provision was newly established to 2006. At present, however, there is discriminatory treatment in the scope of non-taxable wages, considering that of KRW 3 million per month for overseas construction workers and workers on pelagic fishing vessels or vessels serving overseas routes, which is three times as large as that of KRW 1 million per month for general workers abroad and workers on aircraft serving overseas routes. The reasons for the revision of the act were the switch of overseas employment to high income professions, the poor working environment of overseas remote-area construction, and support to construction workers’ overseas employment.
As a result of the examination of this study, it was found that such discriminatory treatment could be in violation of the principle of arbitrariness prohibition for the right to equality, to the effect that the essentially same things should not be treated with discrimination. As for the appropriateness of discriminatory treatment, although there is some justifiability of the legislation purpose to be achieved through the discriminatory treatment, such as the procedure for the revision of the enforcement decree and support to construction workers’ overseas employment, the necessity for discriminatory treatment seems not very great because the legislation purpose is not necessarily achieved only through the discriminatory treatment. In addition, to compare working environment, wages, and manpower supply &demand among occupational categories, the discriminatory treatment in the scope of non-taxable wages for overseas construction workers and workers on pelagic fishing vessels or vessels serving overseas routes, which is three times as large as that of the others, might create a problem in terms of the balance of legal interests Thus, it seems that the discriminatory treatment could be in violation of the principle of proportionality, a criterion for the scrutiny of unconstitutionality in regard to the right to equality.
Therefore, it is judged that it is difficult to find any reasonable reason for justifying the discriminatory treatment in the revision of Article 16(1)1 of the Enforcement Decree of Income Act, and that the revision is opposed to the principle of arbitrariness prohibition and the principle of proportionality for the constitutional right to equality, and is subject to the restriction of the principle of equality in taxation. It is believed that it is necessary to improve such a problem of discriminatory treatment, thereby solving the problem of non-constitutionality in connection with the principle of equality in taxation and implementing the principle of equality, the basic spirit of our constitution.

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