2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be three minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

Each disposition of gift tax imposed by the Defendant against the Plaintiff on June 20, 2001 (the date of donation December 27, 1990), KRW 640,584,720 (the date of donation), KRW 529,64,310 (the date of donation March 14, 1991), KRW 508,351,374 (the date of donation, June 24, 1991) shall be revoked.

2. Purport of appeal

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

The following facts are either disputed between the parties, or found by the statements in the evidence 1, 2, and 1, 2, and 3-1, 2, 4, 5, 16-1, 2, 8, 10, 10, and 1 and 4.

A. Incorporation and capital increase of non-party 1 corporation

(1) On February 20, 1968, Nonparty 2 acquired 86,000 shares of Nonparty 1 Co., Ltd. (hereinafter Nonparty 1 Co., Ltd.) under one’s own name among 180,000 shares (the par value of KRW 5,00 per share, the total par value of KRW 90,000), and with the consent of the Plaintiff, 80,000 shares under one’s own name, and 3,000 shares under the name of Nonparty 3, 11,00 shares, and the acquisition amount was paid in full by Nonparty 2 himself.

B. On December 27, 1990, March 14, 191, and June 24, 1991, Nonparty 1 issued new shares of KRW 300,000 (a total of KRW 1,500,000,000) each time on three occasions including December 27, 1990, and June 24, 191. Nonparty 2 also accepted the entire new shares with its own funds, and Nonparty 2 also accepted 48,000,000 shares of KRW 10,00 each time with the consent of the Plaintiff, etc., and 44,000 shares under the name of the Plaintiff, 2,000 shares were respectively acquired under the name of Nonparty 3 name of Nonparty 4,6,000, and Nonparty 1 had to the head of the competent tax office around that time the Plaintiff submitted a statement of change of shares among Nonparty 1’s shares of KRW 212,00 (a total of 400,00 shares).

Article 22(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 5193 of Dec. 20, 1996), and Article 22(2) of the Inheritance Tax and Gift Tax Act (amended by Act No. 5193 of Dec. 1, 1997) was newly established, with respect to the shares, etc. entered on the register of shareholders, etc. under another person’s name, which were transferred to the head of the competent tax office by a trust, etc. and reported to the head of the competent tax office during the period until December 31, 1998, the shares acquired under the name of Nonparty 3 and Nonparty 4 shall not be deemed a donation. As to the shares acquired under the above provision on December 31, 1998, with respect to which the Plaintiff reported the conversion of the real name under the name of the former, the Plaintiff did not request the consideration, and on March 8, 199, the title trust agreement was prepared that the title trust relationship was terminated between the Plaintiff and Nonparty 1 had not submitted the statement of the share certificates (the Plaintiff 20.

B. Disposition of this case

In the course of conducting the tax investigation on the non-party 1 corporation, the defendant confirmed that the non-party 2 took over the above shares 212,000 shares by lending the plaintiff's name and confirmed that the non-party 2 took over the above shares on June 20, 2001 (the 44,000 shares that were acquired on December 27, 1990 among this case's shares 1 shares and 88,000 shares that were acquired thereafter were acquired on December 27, 1990, and the 88,000 shares shares that were acquired thereafter were collectively referred to as this case's shares) were subject to the deemed donation provision under the former Inheritance Tax Act, which was enforced at the time of acquisition on the ground that the non-party 2 held the title in trust to the plaintiff (the defendant was subject to the disposition of this case's shares at first time, but the amount of tax imposed upon the National Tax Council to reduce the amount of tax pursuant to the decision of the National Tax Council).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The disposition of this case is unlawful on the ground that there is no record of preparing the register of shareholders or issuing the share certificates from the incorporation to the present, and the shares of this case are not listed as shareholders in the register of shareholders of non-party 1 corporation, and thus, it cannot be deemed that the shares of this case are in title trust to the plaintiff. Accordingly, Article 32-2 of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 1988 with respect to the shares of this case as to the shares of this case by Act No. 4022 of Jan. 1, 1989, and Article 32-2 of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 190 and enforced from January 1, 1991 as to the shares of this case by Act No. 4283 of Dec. 31, 190).

B. At the time of the establishment of the non-party 1 corporation, the non-party 2 took over the shares in the name of the plaintiff with the consent of the non-party 1 corporation, on the ground that the number of promoters (seven persons) required to establish the corporation under the Commercial Act was met with the relation at the time of the establishment of the non-party 1 corporation, and that the plaintiff who was enrolled in the university at the time was employed by the non-party 1 corporation, and was actually employed by the non-party 1 corporation. The non-party 1 corporation was amended by Article 10 of the Enforcement Decree of the Construction Business Act as of December 12, 1990 at the time of the acquisition of the shares of this case, the non-party 1 corporation should pay more than one billion won in the case of the civil engineering work operated by the non-party 1 corporation, and the non-party 2 corporation did not receive the tax of this case in accordance with the existing number of shares in the relationship with the non-party 1 corporation established, or did not receive the tax of this case from the non-party 2 corporation.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination as to the assertion that the register of shareholders was not registered

In light of the following facts: (a) No. 1, 2, and 3 of the evidence No. 9-1, 2, and 3; and (b) Non-Party 1’s testimony made by Non-Party 2, and Non-Party 5, the entire purport of the pleading, the fact that the register of shareholders under the Commercial Act was made and submitted to the financial institution, etc., at that time, the register of shareholders, or the list of shareholders (not the list of shareholders under the Commercial Act, including evidence No. 9-1, 2, 3, etc.) may be recognized if necessary in relation to the financial institution, etc.; (c) since Non-Party 1 did not prepare and keep the list of shareholders under the Commercial Act, as long as the value of new shares was paid in the name of the Plaintiff, it does not interfere with the exercise of rights as a shareholder; and (d) as such, it constitutes a case where the Plaintiff’s title holder and other property are deemed as having been subject to transfer under the name of the Plaintiff’s title holder.

D. Determination as to the assertion that there was no tax avoidance purpose with respect to the instant shares No. 1

The provision on deemed donation before amendment aims to prevent the abuse of the title trust system as a means of avoiding gift tax by concealing the donation in property that requires the transfer or exercise of the right. Thus, the separate name such as registration is not intended for avoiding gift tax by concealing the donation in relation to the title trustee, but for the legal limitation or other similar circumstances (see Supreme Court Decisions 95Nu1078 delivered on April 26, 1996, Supreme Court Decisions 92Nu13455 delivered on May 24, 1994; 92Nu1345 delivered on May 24, 1994). In light of the following facts, it shall be deemed that Nonparty 2 did not avoid gift tax by concealing the donation in relation to the Plaintiff at the time of acquiring the shares of this case under the name of the Plaintiff. Therefore, the part on shares of this case among the disposition of this case is unlawful.

E. Determination as to the assertion that the instant shares No. 2 did not have an objective of tax avoidance

(1) The legislative intent of the provision on deemed donation after the amendment is to effectively prevent the act of tax avoidance using the title trust system and realize the tax justice. As such, only when the purpose of tax avoidance is not included in the purpose of acquiring shares under the name of another person, the burden of proving that the provision is not deemed as a donation and the burden of proving that the provision does not belong to the claimant. The tax referred to in the proviso includes all taxes.

The evidence mentioned above and evidence Nos. 11-1-2 and 3 comprehensively reveal the whole purport of oral proceedings. ① At the time of incorporation of the non-party 1 corporation, the acquisition of shares in the name of the plaintiff et al. included the intention of the plaintiff et al. to join the non-party 1 corporation and play an important role together with the purpose of meeting the number of promoters required under the Commercial Act at the time of incorporation of the non-party 2 corporation. The plaintiff actually joined the non-party 1 corporation and let the plaintiff work for the non-party 1 corporation (the plaintiff is currently registered as a director in the corporate register of the non-party 1 corporation). ② The amendment of the Enforcement Decree of the Construction Business Act changed the license standards for the civil engineering work operated by the non-party 1 corporation into 1 billion won or more, and the non-party 2 acquired shares in accordance with the number of shares for convenience at the time of the capital increase, and even if the non-party 1 corporation paid dividends to the non-party 1 corporation or its shares under the name of the plaintiff 1 corporation.

Article 23(1) of the Inheritance and Gift Tax Act provides that “No person shall be held liable for tax evasion under the name of Nonparty 1’s name and/or the amount of capital gains tax to be paid to Nonparty 2.” Article 2(1) of the Inheritance and Gift Tax Act provides that “No person shall be held liable for tax evasion under the name of Nonparty 1’s name and/or the amount of capital gains tax to be paid to Nonparty 2.” Article 2(1) of the Inheritance and Gift Tax Act provides that “no person shall be held liable for tax evasion under the name of Nonparty 1’s name and/or the amount of capital gains tax to be paid to Nonparty 2” (Article 2(1) of the Inheritance and Gift Tax Act provides that “no person shall be held liable for tax evasion under the name of Nonparty 1’s name and/or the amount of capital increase)” (Article 2(1) of the Inheritance and Gift Tax Act provides that “no person shall be held liable for tax evasion under the name of Nonparty 2, the amount of capital increase under the name of Nonparty 2, etc.”

3. Conclusion

Therefore, the part concerning the shares No. 1 in the plaintiff's claim of this case concerning the shares No. 2 in this case is justified, and the part concerning the shares No. 2 in this case is dismissed without merit. Since the part against the defendant which has different conclusions from the judgment of the court of first instance is unfair, it is revoked, and the plaintiff's claim concerning the shares No. 2 in this case is dismissed, and the remaining appeal by the defendant is dismissed without merit.

Judges Lee Jong-sung (Presiding Judge)