(a) Method of determining whether a person who has waived his/her preemptive right to new stocks is a specially related person, in cases where stocks are nominal;

(b) The case holding that the director who received a transfer from the same deputy representative director constitutes "a person objectively obvious that he was friendly due to the same workplace relationship, etc." under Article 11 of the former Enforcement Rule of the Inheritance Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of March 9, 191)

A. In a case where shares are held in title trust, the person who actually renounces the preemptive right is not the title trustee but the title truster who is the actual owner. Thus, in determining whether a person who has waived the preemptive right under the substance over form principle constitutes a person with a special relationship with the shareholders who have renounced the preemptive right,

B. The case holding that the director who received a transfer from the same deputy representative director constitutes "a person who objectively apparent that he was friendly due to the same workplace relationship, etc." under Article 11 of the former Enforcement Rule of the Inheritance Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of March 9, 191)

Article 34-4 of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990); Article 41(2)6 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13196, Dec. 31, 1990); Article 11 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849, Mar. 9, 191)

[Judgment of the court below]

Director of the District Office

Seoul High Court Decision 91Gu21581 delivered on December 29, 1992

Each appeal shall be dismissed.

The costs of appeal shall be assessed against each appellant.

1. Plaintiff’s ground of appeal

According to the reasoning of the judgment below, the court below held that if the non-party 1 was established after converting the private company that the non-party 1 invested and operated in full to the corporation, the non-party 1 distributed his shares at the time of incorporation, and the non-party 2, the non-party 3, the non-party 4, the non-party 5, and the non-party 6 were recorded in the register of shareholders in the name of the non-party 2, the non-party 3, the non-party 4, the non-party 5, and the non-party 6. The non-party 2 did not voluntarily withdraw his shares at the time of the above company's incorporation, and the plaintiff was appointed as the representative director of the above company after he had taken office on November 1, 1989, and then the non-party 1 gave up his preemptive right to new shares, the non-party 2, the non-party 3, the non-party 5, the non-party 1 and the above non-party 1, the non-party's forfeited rights of his position.

In light of the records, the above non-party 2, the non-party 3, the non-party 4, the non-party 5, and the non-party 6 are the title trustee of the above non-party 1's shares, and the above non-party 1, the title truster, renounced the right to new stocks and subsequently accepted the forfeited stocks lawfully by the plaintiff, is justified, and there is no error of misconception of facts or incomplete deliberation due to the violation of the rules of evidence

However, as above, the above Nonparty is merely a title trustee of shares, and the actual owner is the above Nonparty 1. Thus, the person who actually renounced the preemptive right in this case is not the above Nonparty who is the title trustee, but the above Nonparty 1 who is the actual owner. Therefore, in determining whether the Plaintiff is a person with a special relationship with the shareholder who renounced the preemptive right under the substance over form principle, the determination shall be made in relation to the above Nonparty 1,

However, according to the records, it is recognized that the above non-party 1 transferred his private company to a stock company and was employed as a representative director after the company was established, and that he transferred his representative director to the plaintiff who had worked as a director of the above company from the previous year on November 1989 on the ground of labor-management division, etc. Thus, in light of the above status relationship, work relationship, etc., the plaintiff constitutes "a person objectively obvious from the same workplace relationship, etc." under the above non-party 1 and Article 11 of the former Enforcement Decree of the Inheritance Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of March 9, 191). Therefore, although there are some inappropriate points in the reasoning of the judgment of the court below on this point, the conclusion of the court below that the non-party 1 received profits for the plaintiff's considerable low price by accepting the forfeited stocks as a result of the waiver of the preemptive right, it is justified and there is no error in the misapprehension of legal principles as to the constructive gift due to the waiver of the preemptive right.

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below, based on macro-Evidence, acknowledged that, when a Pelim chemical industry company, which was operated individually by the above non-party 1 due to the bankruptcy, was suspended financial transactions from a financial institution or was faced with a crisis to be forced by compulsory execution from the creditors, the plaintiff prepared a certificate of stock transfer to the plaintiff without the above non-party 1's consent in 1989 corporate tax return, and submitted to the defendant the certificate of stock transfer by stating the transfer of 15,00 shares in the statement of stock transfer, but the above company's share certificates were not issued at the time of the transfer and the transfer procedure was not followed. Since the above shares did not change a change of ownership in the future of the plaintiff, the actual owner and the nominal owner of the shares requiring transfer of the plaintiff's shares are not different, and the transfer of the plaintiff's shares for title trust was not made for the purpose of avoiding gift tax, the court below's decision is justified in the misapprehension of legal principles or the record under Article 23-2 of the former Inheritance Tax Act.

There is no reason to discuss this issue.

3. Therefore, each appeal shall be dismissed, and all costs of appeal shall be assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)