Whether the donation constitutes a gift

If a person with parental authority, who is a legal representative, commits an act against the interest of several persons who obey the parental authority without appointing a special representative to the court, the imposition of gift tax based on the invalid act is unlawful, unless there is a legitimate ratification.

§ 921. Acts of conflicting interest between a person of parental authority and a person of parental authority or among several persons

1. The disposition of imposition of KRW 8,304,380, which the Defendant rendered to the Plaintiff on January 3, 2005, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The plaintiff (the plaintiff on June 11, 1987) and the Nuna Kim○ (the plaintiff on September 27, 1985) acquired 4,00 shares of ○○ Corporation on November 1, 1993.

B. The mother of the Plaintiff and Kim○○, the mother of the said shares, managed the said shares.

C. On behalf of the Plaintiff and Kim ○○ on June 3, 1999, Jung-○ opened an account for consignment of shares on behalf of the Plaintiff (the Plaintiff’s account number: 110142 XX, the account number of Kim ○: 110142 XX, and the Plaintiff’s account among them “the instant account”).

D. On June 4, 199, 810 shares of ○○ Corporation were entered into the instant account from the Plaintiff’s stock consignment account opened in △△ Securities.

E. From the stock consignment account established in △△△ on the same day, 1,410 shares of ○○○○○○ (hereinafter “instant shares”) were deposited into the instant account. This is because, while the employee of ○○ Securities entered ○○○○ in the process of substitution and transfer, the employee entered ○○○○○ in the process of substitution and entry into the ○○○○○, the number of account opened by mistake as the account number of this case 110142 XX.

F. On November 22, 1999, Ma○○ sold all of 810 shares of the Korea Communications Corporation and the instant shares entered into the instant account on behalf of the Plaintiff, and purchased shares such as ○ chemical.

G. On January 3, 2005, the Defendant deemed that the Plaintiff donated the instant shares from Kim○○, and determined and notified the Plaintiff of KRW 8,304,380 (including additional tax 1,916,397) on January 3, 2005 (hereinafter “instant disposition”).

[Reasons for Recognition] Evidence Nos. 1, 3 through 14, Evidence Nos. 2-3 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since ○○ Kim○ did not donate the instant shares to the Plaintiff, the instant disposition is unlawful.

B. Relevant statutes

director of the Civil Code (amended by Act No. 7427 of March 31, 2005)

Article 921 (Acts of Conflicting Interest between Person of Parental Authority and Child, or among Children)

(2) If a person of parental authority who is a legal representative acts against another person under the parental authority, to appoint a special representative of such person, the court shall request the appointment of such person.

C. Determination

(1) According to the above facts, during the process of transferring the instant shares to the account opened in Kim○-○’s account, which was established in △△ Securities, the instant shares were incorporated into the instant account irrespective of the Plaintiff’s intention, and thus, it cannot be deemed as a donation. Even if ○○○ donated the instant shares on behalf of △○ on November 21, 199, on behalf of △○○, on the part of △○, the Plaintiff, even if ○○ donated the instant shares to the Plaintiff on November 21, 199, the act of ○○○’s donation of the instant shares to the Plaintiff constitutes an interest conflict between Kim○-○ and the Plaintiff, who is a minor child, constitutes a donation between △○ and the Plaintiff, and thus, ○○○’s donation of the instant shares to the Plaintiff on behalf of △○○-○

(2) Therefore, the instant disposition is unlawful.

4. Conclusion

The plaintiff's claim is justified.