영업양도와 제2차 납세의무와의 관계

• 영문명: A Study on the Relation to Alienation of Business and Secondary Tax Liability
• 발행기관: 조선대학교 법학연구원
• 저자명: 강명수(Kang Myeong Su)
• 간행물 정보: 『법학논총』제10권, 243~271쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.11.30

영문 초록

A business transfer refers to the transferring of a business that is a functional property as an organic w hole organized by a certain business purpose to a third person. Therefore. the business is not just an aggregate of products and rights but a managing organization that has great value through business activities. As it is not desirable socially as well as by the business proprietors that a business is dismantled due to a change of the business proprietors. commercial law accepts the business itself as a subject of transfer under the fundamental idea of business maintenance Commercial law does not recognize an effect of inclusive succession due to a business transfer. However. it regulates several matters to prevent unexpected damages to the concerned party that may occur due to a business transfer. Questions have been presented about lawful and realistic bona fides of the regulations of business transfer in the commercial law. A common one concerns the performance liability of a business alienee who takes over the business name under Article 42 of commercial law. That is. if the concerned trade is recognized as a business transfer irregardless of intention or contracts of the concerned parties. alienee who takes over the business shall have an unlimited personal responsibility for a creditor of an alienator. However. it is questionable whether many business people know that the business alienee who takes over the business name should have that responsibility. It is certain that the regulation is designed to protect the creditor of the alienator. but it is no七thoughtthat it is balanced with the situation of the alienator. Artic1e 45 of commercial law regulates the term of responsibility of the business alienator. It says that creditors are exempt from obligation due to a business transfer irregardless of the intention of the creditors. but its theoretical background is not certain. Also. Article 374 of commercial law states that when part of an important business is transferred. a special resolution of a general meeting of stockholders is necessary. but it is not easy to decide the range of the important business In addition. business transfer is not just a matter between alienators and alienee. That is. in a business transfer. the transfer becomes a social matter beyond the security of living. The employment succession of workers can be a reason for strife. It is due to the fact tha t there is no wri tten regulation about service Lransfer in the commercial law or the service law. and there are no clear standards to judge this business transfer. Also. the second liability to taxation of business alienee in the tax law has a different principle of the law from that of the commercial law. When the second taxation liability falls to the business alienee due to a business transfer. judicial order should be maintained and property rights of the second taxation liability should not be violated unreasonably. However. as there is an uncertain concept in the tax law. its judicial security and possibility of fulfillment are not guaranteed The situation is not beneficial to the interest of the third party or to the concerned party. It is not believed that the regulation of the present business transfer meets demands such as guaranty of free business activities. enforced maintenance of business. and guaranty of trade security. This study analysed the second taxation liability under the fundamental national tax law to present an effective direction for protection of the alienee who should be responsible for reimbursement and the second tax payment due to the business transfer.

목차

Ⅰ. 序論

Ⅱ. 商法上 營業讓渡 當事者의 法律關係

Ⅲ. 稅法上 事業讓受人의 第2次納稅義務

Ⅳ. 商法과 稅法上의 適用상의 問題點 및 對策