The court below rejected the plaintiff's claim that the plaintiff corporation's oligopolistic shareholder of the plaintiff corporation designated the plaintiff corporation as the second taxpayer on October 29, 191 under Article 40 (1) of the Framework Act on National Taxes and that the non-party's inheritance tax was imposed on the non-party 1, who was the representative director of the plaintiff corporation, and the non-party 2 and the non-party 3 (the non-party et al.) who was his wife on August 15, 1989, succeeded to the shares and real estate owned by the non-party 1 and the non-party 3 (the non-party et al.) on the same day as of August 15, 1989, but the non-party did not pay inheritance tax, etc. under the relevant Acts and subordinate statutes. The court below rejected the plaintiff corporation's second taxpayer on October 29, 191 and the non-party's inheritance real estate acquired by the non-party as the representative director of the plaintiff corporation.

Article 40 (1) of the Framework Act on National Taxes provides that even if the Government intends to sell the shares owned or shares invested by the investors through re-auction or free contract even if it intends to sell the shares owned or shares invested by the investors, and the shares owned or shares invested by the investors are restricted by law or the articles of incorporation of the juristic person (Article 40 (1) of the Act on National Taxes). In addition, considering the fact that the secondary tax liability is a supplementary nature that arises in the course of default of national taxes, etc., and that the interpretation of tax laws and regulations must be strictly interpreted, it is apparent that the Plaintiff’s refusal of the Plaintiff’s request to deliver shares to the Plaintiff juristic person and it cannot be deemed that the transfer of shares under the above provision is limited by the Plaintiff juristic person, and even if the Plaintiff juristic person did not issue shares, it cannot be deemed that the transfer of shares can be effective in relation to the company when six months have passed since its incorporation or new shares were issued by the Plaintiff juristic person under Article 335(2) of the Commercial Act, and thus, it cannot be deemed that the Plaintiff juristic person constitutes a limited issuance of shares under Article 17(3) of the Act.

As acknowledged by the court below, if the payment deadline of the above national tax, etc. against the non-party is 6 months after the date of establishment of the plaintiff corporation, the plaintiff corporation's refusal to issue the defendant's share certificates cannot be deemed as satisfying the requirements under Article 40 (1) 1 or 2 of the Framework Act on National Taxes. Furthermore, even if there are no materials to prove that the plaintiff corporation restricted the transfer of shares by its articles of incorporation, the court below decided that the transfer of shares under Article 40 (1) 2 of the same Act is limited only on the ground of the above circumstances, and it does not constitute an unlawful act that affected the conclusion of the judgment by misapprehending the legal principles as to the requirements for establishment of the second tax liability borne by the corporation. This point is with merit.

Therefore, the part of the judgment of the court below which omitted to decide on the remaining grounds of appeal is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)