The revision of the Inheritance Tax and Gift Tax Act in December 2003 seemed to complete the legislation of the comprehensive taxation in the gift tax, but as seen in the Supreme Court's 2013du13266 ruling on October 15, 2015, the relationship between the clause of the comprehensive taxation and the individual tax provisions is still an issue to be resolved.

Thus, I would like to look at how neighboring Japan is coping with these problems. First of all, Japan understands the concept of gift in gift tax as a concept of borrowing under the Civil Law. Gifts that do not conform to the concept of borrowing under the Civil Law are subject to taxation under the provisions of the deemed gifts, which are all about the codes in Article from 5 to 9－5 of the Inheritance Tax Act. Japan’s are incomparably smaller than the number of Korean provisions. This is because Article 9 of the Inheritance Tax Act (hereinafter referred to as “this clause”) functions as a comprehensive legislation. Since this clause alone does not permit tax administration in response to individual gift cases, 14 articles as the specific tax regulations are in the Inheritance Tax Act Basic Regulations. In other words, the individual tax provisions in the Inheritance Tax and Gift Tax Act of Korea are like regulations in the Inheritance Tax Act Basic Regulations of Japan.

In this case, there may be a problem raised from two perspectives. The first is about whether this clause violates the constitutional doctrine which is the principal of no taxation without law, specially the principal of the text-clarity about tax requisition. Some Japanese scholars have argued that this clause violates the principle of text-clarity about tax requisition and some taxpayers have also argued it several times in specific tax cases. But the Supreme Court of Japan firmly says it is a kind of anti-avoidance rule to tax where there is substantial free benefit. Second, it is criticized that it is not a rule of law but a rule of regulations in administration. Some Japanese scholars argue that the taxation of regulations is ultimately against constitutional tax law, but the Japanese court is ruling it constitutional, examining the rationality and adequacy of regulations, and examining again whether taxpayers have free 'economic benefits' under this clause if taxation is performed outside of regulations. When this clause was enacted in Japan in 1947, its structure and content have remained unchanged since then.

We enacted the comprehensive clause in 1952 after this clause of Japan as it is. But in several Supreme Court rulings made in 1970, this comprehensive clause was actually nullified by a narrower interpretation of it than Japan. Since then, we have maintained a method of legislating following individual taxation provisions in response to each new individual case for a while, but felt limited in this way of coping and finally came to the legislation of the comprehensive taxation in the Inheritance Tax and Gift Tax Act in December 2003. Currently, as seen in the Supreme Court's 2013du13266 ruling on October 15, 2015, it is inevitable that our individual taxation provisions have not the nature of gift-example but normativitat, because these provisions are legislated in law by parliament. Therefore, we should refine the individual tax provisions under the Inheritance Tax and Gift Tax Act more reasonably and precisely.

▶ Key Words： gift tax, the legislation of the comprehensive taxation,  Article 9 of the Japanese Inheritance Tax Act,  the principal of no taxation without law,  clarity of tax requisition in tax laws,  the Inheritance Tax Act Basic Regulations