양도담보권자와 명의상 양도담보권자가 다른 경우를 명의신탁으로 볼 수 없음[국패]
Seoul Administrative Court 201Guhap748 ( October 26, 2011)
early 2010west259 ( December 29, 2010)
No case where the mortgagee and the nominal mortgagee are different shall be deemed to be a title trust.
(1) The imposition of gift tax under a title trust is recognized as an exception to the substance over form principle, so its application should be strictly interpreted, and it cannot be interpreted that the actual owner of the said provision and the nominal owner are included in the case of a difference between the mortgagee and the mortgagee in the name of the nominal owner.
2011Nu30863 Revocation of imposition of gift tax
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Head of Seodaemun Tax Office
Seoul Administrative Court Decision 201Guhap7748 decided August 26, 2011
March 20, 2012
April 13, 2012
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
1. Purport of claim
The Defendant’s disposition of imposing gift tax of KRW 000 against the Plaintiff on April 6, 2010 is revoked.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
1. A cited part;
The reasoning for the court's explanation on this case is as follows: (a) using the second agreement under the bottom of the 9th judgment of the court of first instance as the "opportune or implied agreement"; and (b) excluding addition of the defendant's assertion and its decision as follows, it is identical to the reasoning of the judgment of the court of first instance. Therefore, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act
2. The addition;
The defendant asserts that the agreement between financing investors, such as XX and AA, does not stipulate that the above allocated shares should be secured, and that funds investors, such as AA, etc., are not the secured party for the above allocated shares, but the status of the subscriber. In fact, since fund investors, such as AA, directly pay the share price and are listed in the register of shareholders under their own names, it cannot be said that the plaintiff merely acquired the above shares for the purpose of transfer security because fund investors such as AB, etc. want to acquire the above shares (the shares were allocated under the plaintiff's name).
In light of the financing agreement of this case and the contents and purport of the investment agreement of this case, although the investment agreement of this case is acknowledged that only 20% of the non-investment cash cashier's checks are stated as collateral goods, and the above allocated stocks are not indicated as collateral goods, the fund investors, such as LA, etc., paid the subscription price for new stocks by investing in the name of the fund investors or a third party designated by them and completed the transfer of title after the actual acquisition of the shares, shall pay the subscription price for new stocks to Y as investments to Y, and the transfer of title is completed after the acquisition of the above allocated stocks as collateral. Thus, the above allocated stocks is merely an OO for which the shareholders who actually acquired the above allocated stocks are paid the subscription price for new stocks, and it is recognized that OO, who acquired the ownership of the above allocated stocks, provided the above allocated stocks to Y, etc. under the financing agreement of this case and the investment agreement of this case. Thus, the defendant's assertion that the above allocated stocks were without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.