地方自治團體의 課稅自主權 擴大를 위한 法理的 考察

A research for the legal theory and the enhancement of the autonomous taxing power of local government

Korea s local government are facing the severe fiscal crisis recently. This paper intends to enhance the taxing power of local government. For this goal, the extent of this research is limited in the area of the theories, the relevant laws, the current status on the taxing power, financial and autonomous power of local government. This paper also examines the method to magnify the taxing power of local government, considering the legal limitations of the right to determine tax item, which is not endowed to the local government yet and so on. This paper is mainly compo ed of six parts as follow : in the first part, the purpose, the current status of local government s fical crisis and the further discussional direction of this paper are subscribed; In the second part, the autonomous taxing power of local government is studied; that is to say, the theories and the laws related to the autonomy of local government, the financial and taxing power of local government are examined. it also examined various debates related to the principle of tax must be based on law ; In the third part, the current status of the taxing power of local government in foreign countries(Japan, and United States) is studied; In the fourth part, A analysis on the legal theory of the autonomous taxing power of local government is examined; In the fifth part, the extent and limit of the power of enactment of ordinance to the present local taxes are examined. And as a method to magnify the taxing power of local government, the right to determine tax item which is the most important thing is studied. And it suggested the method to transfer the right to determine the tax base of aquisition tax and registration tax from central government to local government. From this paper on the taxing power of local government, it is concluded as follows; First of all, the legal status of the ordinance should be reestablished as the one equivalent to the law. The legal status of local ordinance is inferior to the law, but the local ordinance should be understood as a legal concept analogous to the law, and thus, its status be reestablished since it has a democratic legitimacy and validity. The local ordinance is also constitutionally supported as well. It has been pointed out that the constitutionally secured range of the local ordinance is not esteemed during the law-making. The basis derives from the fact that the legal status of the local ordinance is not mandate but quasi-law. The alternatives for expanding the range of local ordinances are proposed that the saving clause in the fifteenth section and the saving clause in the ninth section of the Local Autonomy Act should be deleted. And, the third section, first sub-section in the Local Tax Act should be clearly amended by deleting it again. And the system of judicial review on the local ordinance should be taken by the Constitutional Court; Second, the taxing power of the right to determine tax item are endowed to the local government to quite a degree. However the negative attitude of governor of the local government caused by the worry over tax revolt, the lack of understanding of local government on local taxation system, and the lack of inducement to increase the yield of taxes keep the most endowed rights for taxation from being properly used by local government; Third, considering the increasing effect of tax revenue, it is better to promote the practical use of existing taxing power of local government than expand the taxing power of local government by establishing new tax item. In other words, the promotion of the practical use of the arbitrable tax-rate system, which is a part of the right to determine tax rate among the existing taxing power of local government, is more effective to increase the tax revenue. Even if the tax which is not provided by law is introduced, tax sources are limited. Because the taxation of local government is not permitted to impose taxes on the same items with the na