Claim for Damages

Whether there is a serious defect in the initial notice

Seoul Central District Court-2014-Ban-249483

Jeonn 00

Korea

2015.05.27

2015.07.08

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant shall pay to the plaintiff KRW 38,189,40 and the plaintiff shall pay to the plaintiff the full amount from the day immediately after the judgment of this case is rendered.

By the day, 20% interest per annum shall be paid.

1. Basic facts

A. The plaintiff on June 28, 2007, which is a KOSDAQ-listed corporation, buckbucks Co., Ltd. (hereinafter referred to as "Bucks Co., Ltd.")

G. 2,325,582 shares (hereinafter referred to as the "new shares of this case") by participating in the third party allocation method for issuing new shares;

1,290 won per share.

B. The director of the mid-term Tax Office may market price of the new stocks of this case (in accordance with the supplementary assessment methods, the value per share).

액 1,396원)보다 낮은 가액으로 취득하여 그 차액 상당의 이익 246,511,692원 �= (1,396

Won - 1,290 won x 2,325,582 deemed to have been donated to the Plaintiff on February 1, 2011

The Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter referred to as the "Inheritance Tax and Gift Tax Act").

Article 39(1)1 (c) and Enforcement Decree of the same Act (Presidential Decree No. 20621, Feb. 22, 2008)

Pursuant to the provisions of Article 29, the gift tax amount of KRW 38,189,400 shall be determined and notified (hereinafter referred to as "the gift tax").

'The Disposition of this case' was 'the Disposition of this case'.

C. On February 24, 2012, the Plaintiff filed an administrative litigation seeking the revocation of the instant disposition; however, the Plaintiff filed an administrative litigation

The judgment of dismissal has been rendered on the ground that the lawsuit period has been exceeded, and the above judgment has become final and conclusive as is.

Seoul Administrative Court(2012Guhap6728).

F. Accordingly, the Plaintiff paid KRW 38,189,400 according to the instant disposition.

[Reasons for Recognition] Uncontentious Facts, Entry of Gap evidence 2, the purport of the whole pleadings

2. Relevant statutes;

▣ 구 상속세 및 증여세법(2007. 12. 31. 법률 제8828호로 개정되기 전의 것)

Article 39 (Donation of Profits Following Capital Increase)

(1) In order for a corporation to increase its capital (including the amount of investment; hereafter the same shall apply in this Article and Article 39-2), a new one shall apply.

Benefits falling under any of the following subparagraphs as a result of the issuance of stocks or equity shares (hereafter in this Article, referred to as “new stocks”):

The amount equivalent to the relevant profits shall be deemed to be the value of donated property of the person who has acquired such profits.

1. The market price (referring to the price assessed under Articles 60 and 63; hereafter in this paragraph and Article 40, the same shall apply);

If issued at a lower price than that of any of the following categories:

(a) Rights to receive new stocks allocated to shareholders of the relevant corporation (including investors; hereafter the same shall apply in this Article);

Where all or some of the renounced new shares (hereafter in this paragraph, referred to as forfeited shares) are allocated (a certificate of being issued)

Stock-listed corporations or Association-registered corporations under the Exchange Transactions Act under Article 2 (3) of the same Act; and

under subsection (1) of this section, except in the case of allocation by means of solicitation; hereafter the same shall apply in this paragraph; hereinafter referred to as a "general rule").

by the person who received the allocation of forfeited stocks, the benefits acquired by obtaining the allocation of forfeited stocks;

(c) A person who is not a stockholder of the relevant corporation directly distributes new stocks from the relevant corporation (an underwriter under the Securities and Exchange Act);

of this subsection, shall include the case of direct acceptance and acquisition of such new shares; hereafter the same shall apply in this paragraph) or

in excess of the number of shareholders entitled to receive allocation under equal conditions in proportion to the number of their shares;

(1) Profits acquired by directly obtaining such new shares;

▣ 구 증권거래법(2007. 8. 3. 법률 8635호로 폐지되기 전의 것)

Article 2 (Definitions)

(3) The term “public offering of new securities” in this Act means securities which are newly issued under the conditions as prescribed by the Presidential Decree.

The term “tender” means the solicitation of an offer to acquire.

▣ 구 증권거래법 시행령(2008. 1. 18. 대통령령 제20551호로 개정되기 전의 것)

Article 2-4 (Public Offering and Sale of Securities)

(1) In conducting the public offering of new securities as provided for in Article 2 (3) of the Act, the acquisition of new securities to be issued.

The number of persons who are solicited to subscribe shall be 50 or more persons.

(4) The collection of securities in which the number of persons who are solicited to subscribe is less than 50 as a result of the calculation under paragraph (3).

even if it does not correspond to the House, the securities concerned shall be transferred to 50 or more persons within one year from the date of issue.

may be deemed to be a public offering of new securities if it falls under the standards for resale prescribed by the Financial Supervisory Commission.

(n) Interscriptive subscription.

▣ 구 유가증권의 발행 및 공시 등에 관한 규정(2007. 5. 16. 금융감독위원회 공고 제

(2) The articles before amendment by 2007-37

Article 12 (1) 1 main sentence

In the case of share certificates or certificates of preemptive rights, the securities market or certificates of preemptive rights of the same kind;

Where the KOSDAQ market has been listed, publicly offered, or sold, the relevant securities shall be within one year from the date of their issuance.

may be transferred to a person who has not less than 50 persons.

3. The plaintiff's assertion

Even if new shares are issued at a price lower than the market price and shares are allocated to a third party, according to the relevant statutes.

(1) At least 50 persons who are solicited to make an offer, or (2) The number of persons who are solicited to make an offer is less than 50 persons.

may be transferred to 50 or more persons within one year from the date of issuance and stock certificates shall be

Where the KOSDAQ market has been listed and publicly offered, gift tax may be levied.

in this case, within one year from the date of publication, 50 or more persons may be transferred.

(1) In addition, in light of the method of public offering and the number of actual holders of shares, the rule of experience;

It is reasonable to see that 50 or more persons who are solicited to subscribe are 50 or more persons. Nevertheless, the Superintendent of the Central Tax Office of China

For example, this case’s disposition was rendered unlawfully with the interpretation of order. Accordingly, the plaintiff 38,189,400

The Defendant sustained damages. Accordingly, pursuant to Article 2 of the State Compensation Act, the Defendant’s tort shall apply to the Plaintiff.

As a result, 38,189,400 won and damages for delay shall be paid.

4. Determination

A. Progress of the relevant lawsuit

1) Facts

A) The non-party 49 members of the non-party 49 are those of the third party that was held by A00s, a KOSDAQ-listed corporation.

New shares issued on May 4, 2007; 4,261,394 shares of registered ordinary shares;

The 11,500 won was accepted and paid the total of 49,006,031,000 won.

B) The result of the Gangnam Tax Office’s calculation of the assessment value per share before the capital increase of the above 000s.

The value of 13,609 won higher than the above price of capital increase by the non-party 49 won higher than the market price

to impose gift tax by acquiring new shares and deeming that the amount equivalent to the difference has been donated;

was made.

C) One of the non-party A, who is the director of the Gangnam Tax Office, shall file a lawsuit seeking revocation of the imposition of the gift tax.

I presented its proposal.

2) The judgment of the court

A) The main issue of the lawsuit is under the overall provision of Article 39(1)1(a) of the Inheritance Tax and Gift Tax Act.

The method of public offering of new and outstanding securities shall be deemed to have been prescribed in Article 2-4 (4) of the Enforcement Decree of the

Whether the method of collection is included, and, in the case of deemed recruitment, whether the solicitation for offer should be premised;

had been.

B) The first instance court and the appellate court shall have the term “public offering method of securities” as referred to in the above general rule.

The method of deemed recruitment provided for in Article 2-4(4) of the Enforcement Decree of the Trade Act shall not include, but include:

(1) If there is no solicitation for subscription, the bylaws do not constitute a deemed recruitment, and

Now it can be applied, and the above A.S. 000s are new through the solicitation procedure for subscription for capital increase;

A’s claim was dismissed on the ground that there is no evidence to deem that the State was issued (Seoul Administrative Law)

Won 2011Guhap942, Seoul High Court 2012Nu14141)

C) However, the Supreme Court reversed the original judgment with different views as follows.

The case was remanded to Seoul High Court (Supreme Court Decision 2012Du25712).

(1) Procedures for issuing new stocks even if deemed public offering under Article 2-4 (4) of the Enforcement Decree of the former Securities and Exchange

in that it is subject to various regulations provided for in the relevant laws and regulations with respect to the issue price and issue price;

There is no difference from the general subscription stipulated in Paragraph (1), and Article 2 Paragraph (3) and (3) of the former Securities and Exchange Act

In light of the language and structure of Article 2-4 of the former Enforcement Decree of the Securities and Exchange Act

Article 2-4 of the Enforcement Decree provides for the 'public offering of securities' in accordance with delegation under Article 2 (3) of the former Securities and Exchange Act.

one of the cases at issue may be interpreted as a provision for deemed recruitment in paragraph 4, and therefore, generally

Article 2-4 (4) of the former Enforcement Decree of the Securities and Exchange Act shall apply to the method of public offering of 'securities'.

The method of deemed recruitment as defined also includes the method of such solicitation.

(2) Details of Article 2-4 (4) of the former Enforcement Decree of the Securities and Exchange Act and the issuance of securities

In light of the legislative intent to prevent the avoidance of various regulations under one law,

Article 2-4 (4) of the former Enforcement Decree of the Securities and Exchange Act is not "the number of persons who have been solicited to subscribe" but "the number of persons".

on the basis of ‘whether or not there is a possibility of deemed recruitment' that provides for the determination of whether it constitutes a deemed recruitment.

As such, even if there was no solicitation for subscription, Article 12(1)1 of the Securities Issuance Regulation

section 2-4(4) of the former Enforcement Decree of the Securities and Exchange Act, if the possibility of resale meets

applicable to such deemed recruitments as set forth.

B. Whether liability for damages was established

1) Legal principles

Generally, public officials do not know the relevant laws and regulations or need them to perform their duties.

If a false administrative disposition was made due to a lack of knowledge, the interpretation of the law is limited, that law;

A public official who is not a percentage expert shall not be at fault, but shall not be at fault

There are many opinions because the interpretation itself is not clear by itself.

In the case of lack of significance due to the absence of precedents, theories, precedents, etc. on this case, the relevant public official

Any of the reasonable grounds is sought by a State without due diligence, referring to any one of them.

After the interpretation of the Supreme Court, it is not the same as the position that the Supreme Court issued, resulting in an erroneous interpretation.

In addition, the result is that the process is illegal as a result of the illegal execution of the statute.

average official duties in good faith, even if they result in more than such processing methods;

It is difficult to expect to the member, so that it is difficult to expect to the public official under the State Compensation Act even in such case.

Fruits cannot be recognized (Supreme Court Decision 2010Da83298 Decided February 24, 201).

2) Recognition that the Plaintiff was allocated new shares by deemed recruitment as alleged by the Plaintiff

As a result, even if the disposition of this case is unlawful, the interpretation of the relevant laws and regulations is so unlawful.

There is a conflict of views on the interpretation of statutes to what extent the judgment of the court of first instance, the appellate court and the Supreme Court should be judged.

In the case, the director of the Central Tax Office has taken the disposition of this case according to his own opinion and was negligent.

not be deemed to exist.

5. Conclusion

Thus, the plaintiff's claim of this case does not need to examine the remainder of this case.

Since it is not good, it shall be dismissed.