주권이 발행된 주식의 경우 주식양도의 합의와 주권의 교부로 주식이 반환되었다고 봄이 타당함[국패]
Seoul Administrative Court 2012Guhap32376 ( November 08, 2013)
It is reasonable to view that the shares were returned by the agreement on transfer of shares and issuance of share certificates in the case of shares issued.
In the case of shares issued with stock certificates, it is reasonable to deem that the shares were returned by the agreement of stock transfer and the issuance of stock certificates, and as long as the shares in this case were returned, the disposition of this case is unlawful.
2013Nu3230 Revocation of Disposition of Imposing gift tax
1. ParkA 2. KimB 3. oldCC 4. DoD 5. KimE
6. KimF 7. RedG
2. The director of the tax office of Cheongju; and
4. The director of the regional tax office; 5. The director of the regional tax office; and
7. The director of the tax office for male-sea.
Seoul Administrative Court Decision 2012Guhap32376 decided November 8, 2013
June 17, 2014
July 1, 2014
1. The defendants' appeal is dismissed.
2. The costs of appeal are assessed against the Defendants.
1. Purport of claim
Each disposition taken by the Defendants in the separate sheet against the Plaintiffs is revoked.
2. Purport of appeal
The judgment of the first instance is revoked, and all of the plaintiffs' claims are dismissed.
1. Quotation of judgment of the first instance;
"The reasoning for this Court's explanation is that the Seoul Eastern District Court (2012 GohapO) was changed on February 24, 2012 to "Seoul Eastern District Court (2011 GohapO)" on February 24, 2012, and 3. D. (4)(a) is the same as the part of the reasoning for the judgment of the first instance except for the second instance as mentioned below. As such, Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act are cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act."
(A) In cases where the donated property is returned by an agreement between the parties concerned after receiving the gift under Article 31(4) of the Inheritance Tax and Gift Tax Act within the time limit for filing the gift tax base under Article 68 (3), the donation shall be deemed not to have existed from the beginning. However, the same shall not apply to cases where the tax base and the amount of tax are determined before returning the donated property. This provision does not provide for the exclusion of the application of the above provision on title trust deemed to be the donation under Article 45-2 of the Inheritance Tax and Gift Tax Act, but does not apply to cases where the donated property is returned by agreement between the parties concerned within the time limit for filing the gift tax base and where the donee or the title trustee returns the donated property, Article 31(4) of the Inheritance Tax and Gift Tax Act applies even in cases where the title trust is terminated and returned (see Supreme Court Decision 2011DuO00, Sept. 29, 201).
Article 336(1) of the Commercial Act provides that a share certificate shall be issued for the transfer of shares (Article 336(1)), and that a transfer of shares shall not be effective against the company unless the person who acquired the shares and his name are entered in the register of shareholders (Article 337(1)). From the transfer of shares under the Commercial Act, since the transfer of shares is merely an requisite to oppose the exercise of rights against the company, the actual shareholders and shareholders in the register of shareholders prior to the transfer of shares takes place, and the transfer of shares takes place under another person’s name other than one’s own name. As such, it is difficult for the company to levy taxes depending on the substance of property relations because it is difficult for the transfer of shares by delivery of share certificates to objectively understand, and as long as the transfer of shares is a different date from that of the company to whom the transfer of shares is made, the transfer of shares cannot be deemed as having been made on the date when the transfer of shares was made under the name of the company and the transfer of shares can be excluded from the application of title trust provision under the Commercial Act.
3. Conclusion
Therefore, the plaintiff's claim is dismissed, and the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.