A. The Defendant’s imposition disposition of KRW 39,908,50 in excess of KRW 83,751,060 in the imposition disposition of KRW 83,751,060 in the business year 198 by ○ Construction Co., Ltd. against the Plaintiff on June 27, 2003, exceeds KRW 2,317,420 in the imposition disposition of KRW 8,801,120 in the year 197, exceeding KRW 1,935,835,420 in the imposition disposition of KRW 1,961,00 in the year 198, exceeding KRW 1,961,041 in the imposition disposition of KRW 5,835,420 in the imposition disposition of KRW 1,98, KRW 714,420 in the second imposition disposition of value-added tax in the year 197 and KRW 2,742,410 in

B. The plaintiff's remaining claims are dismissed.

2. The total cost of a lawsuit shall be divided into two parts, one part, and the other part shall be borne by the plaintiff, respectively.

On June 27, 2003, the Defendant: (a) designated the Plaintiff as the secondary taxpayer on ○ Construction Co., Ltd.; and (b) revoked each disposition of imposition of KRW 83,751,060 of corporate tax for the business year 1998, KRW 8,801,120 of the first value-added tax for the business year 1997; (c) KRW 714,420 of the second value-added tax for the business year 1997; (d) KRW 5,835,420 of the first value-added tax for the year 1998; and (e) KRW 2,742,410 of the second value

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

A. ○○ Construction Co., Ltd. (hereinafter “○○ Construction”) is a company established on August 27, 1996 and engaged in equipment construction business, etc.

B. At the time of December 31, 1997, 49% shares issued by ○○ Construction on the register of shareholders or the statement of stock transfer were registered respectively as 2% of the Plaintiff’s husband’s 0%, 30% of 0% of 00 children, 19% of 00 children, 49% of 00 children, 49% of the Plaintiff as of December 31, 1998, 30% of 00 children, 30% of 00 and 21% of 00 children, and the Plaintiff was registered as ○○ Construction’s representative director from March 19, 197 to March 10, 204.

C. ○○ Construction was unable to pay KRW 155,00,00, including corporate tax, etc. for the business year 1998, which was imposed on himself due to the shortage of property owned by him. Accordingly, the Defendant: (a) the Plaintiff and the Plaintiff, Park○, Park○, and Park○○ was designated as a person liable for tax payment on the grounds that the Plaintiff and the Plaintiff constituted a person liable for tax payment under Article 39(2) of the former Framework Act on National Taxes (amended by Act No. 5579, Dec. 28, 1998; hereinafter the same shall apply); (b) Article 20 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968, Dec. 31, 1998; hereinafter the same shall apply); (c) the total number of shares issued by Taecheon Construction was more than 51/100 of the total number of shares issued by him and thus, constitutes an oligopolistic shareholder under Article 39(1) of the former Act.

D. After that, the defendant is an oligopolistic shareholder under Article 39(1) of the former Act and is the second taxpayer, the plaintiff is liable to pay taxes for the entire portion of ○○ Construction's national taxes that had been established before December 31, 1998. The defendant, on June 27, 2003, corrected the amount of the second tax payment of the plaintiff again to the plaintiff on June 27, 2003, and deducted the amount of the tax payable by deducting the already paid amount, etc. from the calculation table of the attached tax (hereinafter referred to as the "assessment table of this case") in the "second designation" column of the corporate tax for 1998, the first-year value-added tax for 197, the second-year value-added tax for 1997, the first-year value-added tax for 198, the second-year value-added tax for 198, and the second-year value-added tax for 298 (hereinafter referred to as the "each disposition in this case"). The plaintiff did not have any ground for recognition.

2. Whether the disposition of imposition is lawful.

A. The plaintiff's assertion

As acknowledged earlier by the Plaintiff, it is true that ○○ Construction is registered as a representative director and a shareholder of ○○ Construction, but it is inevitable to register the Plaintiff as a representative director and a shareholder of ○○ Construction, because ○○○○○, registered as a ○○○ Construction’s representative director and a shareholder of ○○ Construction’s company, could not be issued a performance guarantee insurance policy at the time of various construction contracts if the representative director is a ○○○○ Construction’s representative director, which is registered as a ○○ Construction’s representative director and a shareholder. However, the Plaintiff does not have any fact that the Plaintiff actually invested in ○○ Construction, and even though there was no fact that ○○○ was involved in the management, each of the dispositions

B. Relevant statutes

○ Secondary tax liability of an investor under Article 39 of the former Act

(1) If the property of a corporation (excluding corporations whose stocks are listed on the Korea Stock Exchange) is insufficient to cover the national taxes, additional dues, and disposition fee for arrears that are imposed on or to be paid by such corporation, any of the following persons as of the date on which the liability to pay national taxes is constituted shall assume the secondary liability to pay the shortage

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who holds the greatest number of stocks or invests the greatest number of stocks;

(b) A person who actually controls the management of a corporation;

(c) A person sharing the livelihood with the persons under items (a) and (b);

(d) Officers as prescribed by the Presidential Decree;

(2) For the purpose of paragraph (1) 2, the term “excess shareholder” means a person who is a relative or has other special relations with a stockholder or partner with limited liability as prescribed by the Presidential Decree, and the total amount of his stocks owned or investment is not less than 51/100 of the total amount of issued stocks or investment of the juristic person concerned.

○ Framework Act on National Taxes (amended by Act No. 7930, Apr. 28, 2006; hereinafter the same shall apply)

(1) Where the property of a corporation (excluding a corporation whose main office is listed on the Korea Stock Exchange) is insufficient to cover the national tax, additional dues, and disposition fee for arrears that the corporation has imposed on or pays, with the property of the corporation, any person who falls under any of the following subparagraph shall be liable to pay the second tax for such shortage: Provided, That in the case of an oligopolistic stockholder under subparagraph 2, the limit shall be the amount calculated by multiplying the amount obtained by dividing the shortage by the total number of stocks issued (excluding non-voting stocks; hereafter the same shall apply in this Article) or total amount of investment of the corporation, by the number of stocks owned (excluding non-voting stocks) or investment amount (in the case of an oligopolistic stockholder under subparagraph 2 (a)

2. An oligopolistic stockholder who falls under any of the following items:

(a) A person who exercises a substantial right over the stocks or investment shares in excess of 51/100 of the total issued stocks or total investments of the relevant corporation;

(b) A person who actually controls the management of a corporation, notwithstanding the name of the honorary chairperson, chairperson, president, vice president, managing director, managing director, director, or any other title;

(c) Spouse (including a person in a de facto marital relationship) of the persons under items (a) and (b) and the lineal ascendants and descendants living together with

(2) The term “ oligopolistic stockholder” in paragraph (1) 2 means a stockholder or one limited partner and his relatives or other persons having special relations with him as prescribed by the Presidential Decree, whose total amount of stocks held or investments is not less than 51 percent of the total amount of issued and outstanding stocks or investments of the juristic person concerned.

Article 20 of the Enforcement Decree of the ○ Act, Scope of Relatives and other specially related persons

For the purpose of Article 39 (2) of the Act, the term “relatives or other person having a special relation as prescribed by the Presidential Decree” means a person falling under any of the following subparagraphs: Provided, That in case where a stockholder or partner with limited liability is a woman, excluding the cases of subparagraphs 9 through 13, the husband shall be subject

1. Paternal relatives within the sixth degree and the wife of any paternal blood relationship within the fourth degree;

5. The spouse (including the person in de facto marital relations);

C. Determination

(1) applicable laws;

With the amendment of the tax laws and regulations, the Acts and subordinate statutes effective at the time of the establishment of tax liability should apply to the case where there is no separate transitional provisions related to the provisions of the Addenda. On the other hand, in order to establish the secondary tax liability, the fact that falls under the requirements of the main taxpayer, such as default. Thus, the time of establishment of the secondary tax liability shall be at least after the expiration of the period of payment of the main tax liability (Supreme Court Decision 2003Du13083 Decided April 15, 2005). As seen above, the second tax liability of this case, which serves as the basis for each of the dispositions of the Plaintiff, is related to ○ Construction's 197, 1998 and 1998 corporate tax attributed to ○○ and 198 corporate tax, and the time of establishment of the second tax liability shall be at least after the lapse of the amendment of the Acts and subordinate statutes effective at least 90 days prior to the enforcement date of the second tax liability of the Framework Act on National Taxes, 1909 years prior to 190.

(2) Whether the plaintiff constitutes an oligopolistic shareholder under the new law

As to whether the Plaintiff constitutes an oligopolistic shareholder under Article 39(1)2(a) of the New Act, according to each description of Gap evidence 6 through 8, Eul evidence 1 through 5 (including various numbers), the Plaintiff owned shares equivalent to 49/100 of the total number of issued and outstanding shares of ○○ Construction as of the date of establishment of each of the value-added tax and corporate tax of this case, and registered as the representative director of ○○ Construction from March 19, 197 to March 10, 204. The Plaintiff’s husband’s ○○○ and the other shares in the name of ○○○○ and ○○○○○ are actual owners of 6 to 8, and Eul evidence 1 to 5 (including several numbers), and the Plaintiff’s right to tax payment under Article 39(1)2 of the New Act is not included within the scope of 1/100 of the total number of issued and outstanding shares, and the Plaintiff’s new shares are not included within the scope of No. 51/1/1/1/1/1 of the Plaintiff’s new shares.

(3) Justifiable tax amount

Furthermore, as of June 1, 2003 near the date of each disposition of this case, with respect to the legitimate amount to be borne by the plaintiff as the secondary taxpayer of ○○ Construction as of June 1, 2003, the amount in arrears in the month to which the date of payment of the calculation table of this case belongs shall be the amount written in the column of "tax amount to be paid" after deducting the amount written in the column of "amount to be paid at ○○○○○○○" on the calculation sheet of this case, which is the amount calculated by multiplying the amount written in the column of "amount in arrears in the month to which the date of payment of the calculation table of this case belongs" by 49% of the number of the plaintiff's ownership.

3. Conclusion

Therefore, among the dispositions of this case, the part exceeding 39,908,054 won in the imposition disposition of KRW 83,751,060 in the business year 198, the part exceeding 2,317,420 won in the imposition disposition of KRW 8,801,120 in the business year 1997, and the part exceeding KRW 1,961,041 in the imposition disposition of KRW 5,835,420 in the business year 198, and the part exceeding KRW 1,961,041 in the imposition disposition of KRW 714,420 in the business year 2,742,410 in the business year 197 and the imposition disposition of KRW 2,742,410 in the business year 198 are unlawful. Thus, the plaintiff's claim for revocation shall be accepted in the absence of justifiable reason, and the remaining claim shall be dismissed in the judgment of the court of first instance.