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A Critical Review on the Legal Aspect of Levy on Tobacco Consumption - Including a Permission Limit of the Constitution and Unconstitutionality Examination -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2008, 42(), pp.545-573
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Shin, Bong-Ki 1 전기성 2

1경북대학교
2한양대학교

Accredited

ABSTRACT

The government has implemented a levy on tobacco consumption (hereafter tobacco levy) and is currently considering increasing the tax rate 61% to 70% of tobacco price. This has raised a lot of arguments since this tobacco levy is different from other typical levies. We conducted this study to investigate whether the legal bases used to support the collecting of this tobacco levy is constitution or not. This study covers the legal characteristics of tobacco levy. the current system, which gives the rationals for the tobacco levy(the national health promotion fund), and a critical review on the legal aspect of the tobacco levy and its current use. A typical levy can be legally supported by 3 criteria; Are individuals who pay tobacco levy (hereafter levy-payer) homogenous enough to be treated as a group?; Levy-payers have more responsibility than the general public with regards direct as well as sufficient benefits from the levy? The main findings of this study are as follows: Firstly, it is unreasonable that actual levy-payers who pay the tobacco levy are end consumers who buy cigarettes. it is because the tobacco business or industry has a legal obligation to pay this levy but they just transfer it to the end consumer so that they do not pay the levy at sll. End consumers cannot be treated as a homogenous group . Secondly, it is unreasonable that tobacco consumers(levy-payers) have more responsibility to promote public health and/or are more responsibility for public health. Thirdly, it is unreasonable that end consumers as well as tobacco businesses not get sufficient benefits from the levy. The fund is mainly used for other general public uses. Moreover, current health insurance law prohibit reimbursement for smoking cessation. It is contradictory to the national health promotion law, which prescribes that the levy must be used for smoking related disease. There is no strong legal support for the tobacco levy. The current system on tobacco taxation would require a legal amendment.

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