[부과처분취소][미간행]
Whether Article 39 (1) 2 (a) and (b) of the former Framework Act on National Taxes, which provides for secondary tax liability for oligopolistic stockholders, violates Article 23 (Guarantee of Property Rights) of the Constitution or violates the provisions of Article 331 (Liability of Stockholders with Limited Liability) of the Commercial Act (negative)
[1] Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998); Article 331 of the Commercial Act; Article 23 of the Constitution of the Republic of Korea
Supreme Court Decision 99Du9346 Decided January 14, 200 (Gong2000Sang, 418) Supreme Court Decision 2001Du5354 Decided July 8, 2003 (Gong2003Ha, 1725) Decided September 26, 2003, Supreme Court Decision 2002Du4723 Decided September 26, 2003
Governing land
The head of Yangcheon Tax Office
Seoul High Court Decision 2002Nu6790 delivered on December 5, 2002
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The second liability of oligopolistic shareholders under Article 39(1) of the former Framework Act on National Taxes (amended by Act No. 5579, Dec. 28, 1998; hereinafter referred to as the “former Framework Act on National Taxes”) intends to realize the principle of substantial taxation as a principle for the imposition of national taxes and the application of tax laws. Although property is formally belonging to a third party, even if it is substantially identical to the principal taxpayer, a third party having special relationship not to lose fairness should be deemed as having the secondary liability for tax payment, thereby denying the formal ownership of such property rights, and thereby, ensuring the rationality and feasibility of the content of the tax collection and accomplishing the public interest of securing tax collection, and on the other hand, a shareholder with limited liability does not violate the principle of no taxation without law, and thus, a shareholder is not obliged to exercise any liability against the creditors of the company, externally, by separating the property of an oligopolistic shareholder from the company and the shareholder, and thus, it is also necessary to establish a new system of no taxation without the principle of no taxation without the law.
In the same purport, the court below is just in holding that Article 39 (1) 2 (a) and (b) of the former Framework Act on National Taxes, which is the basis of the disposition of this case, shall not be deemed to be a violation of Article 23 (Guarantee of Property Rights) of the Constitution or a violation of Article 331 (Liability of Shareholders) of the Commercial Act within the scope of imposing secondary tax liability on an oligopolistic stockholder who actually takes part in the management of the corporation and actually exercises the rights to more than 51/100 of the total number of stocks issued by the relevant corporation, including the stocks held by the relevant oligopolistic stockholder, or shall not be deemed to be a violation of the provisions of Article 39 (1) 2 (a) and (b) of the same Act.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Yong-woo (Presiding Justice)