The relationship of attribution of the rights and obligations acquired by the promoters before the incorporation is made by a corporation

In the process of the incorporation of a corporation, the promoters are established only when the articles of incorporation is prepared in order to explain the relationship that the rights and duties acquired by the promoters through the act necessary for the incorporation of the corporation and belongs to the established company at least one share of shares, and the promoters have acquired at least one share of shares at the time of the incorporation. The rights and obligations acquired by the promoters prior to the incorporation of the corporation is attributed to the promoters or the promoters' associations in accordance with the specific circumstances. In order to vest the rights and obligations vested in them after the establishment of the corporation, there must be special transfer, such as acquisition by transfer or assumption of obligations. Thus, it is difficult to view that the above company acquired the status of the purchaser of the above land from the plaintiff merely because the plaintiff deposited the land in the books of the company where the plaintiff was the promoters with respect to the land of this case for which the transfer registration of ownership was completed, entered as purchase of the land of this case

Article 172 of the Commercial Act; Article 13 of the Framework Act on National Taxes; Article 33 of the Civil Act

Supreme Court Decision 70Da1357 decided Aug. 31, 1970 (No. 18(2)) 84Nu678 decided Jul. 23, 1985 (Gong1985,1196) 90Nu2734 decided Nov. 13, 1990 (Gong191,254)

[Defendant-Appellee] Han-sik, Counsel for defendant-appellee

The director of the tax office

Seoul High Court Decision 89Gu1007 delivered on February 22, 1990

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the defendant litigant are examined.

According to the reasoning of the judgment below, the plaintiff transferred the above land to the plaintiff on December 24, 1982 and paid 33,000,000 won to the above 10-year company's capital stock company to the non-party company for the purpose of operating the business of processing the non-party-Japan Food Co., Ltd. for the purpose of acquiring the non-party-Japan's business. The court below decided that the above 10-year company's capital stock and the above 10-year company's capital stock were to be disposed of for the above 10-year company's capital stock company's capital stock, but it was difficult for the plaintiff to obtain permission for the establishment of the non-party-Japan Food Co., Ltd. on February 29 through March 30, 1982. However, the above 20-year company's capital stock and the above 10-year company's capital stock were to be disposed of for the non-party-party-party company's capital stock stock company's capital stock stock transfer to the above 10-year company's capital stock company's capital stock transfer.

However, in the process of incorporation of a corporation, the term "company in the process of incorporation" is an academic concept established in the articles of incorporation to explain the relationship between the rights and duties acquired by the act necessary for the establishment of the corporation and the relationship attributable to the established company at the same time as the establishment of the corporation, and is established only when the promoters have subscribed at least one share of shares (see Supreme Court Decision 70Da1357, Aug. 31, 1970; Supreme Court Decision 84Nu678, Jul. 23, 1985). The rights and duties acquired by the promoters prior to the establishment of the corporation as a company in the process of incorporation are attributed to the promoters or the promoters' associations according to specific circumstances, and it is necessary to perform special transfer such as acquisition by transfer or assumption of obligations, etc. to which the rights

However, according to the records, the articles of incorporation of the non-party company can only be recognized as having been prepared on February 11, 1983, the date of registration of incorporation, and even after examining all the evidence cited by the court below, it is difficult to view that the non-party company acquired the status of purchaser of the above land from the plaintiff, on January 17, 1983, where the land price of this case was fully paid by the plaintiff, or on February 10, 1983, where the plaintiff invested 56,210,000 won in total, until February 10, 1983, it cannot be found that the non-party company acquired the above land or the plaintiff invested funds in the company during the establishment. Further, it is difficult to view that the non-party company acquired the status of purchaser of the above land from the plaintiff.

After finding the facts as stated in its holding, the court below determined that the land of this case was acquired at the stage of establishment by the non-party company and the income accrued from the transfer was reverted to the above company is erroneous in the misapprehension of legal principles as to the company during establishment, which affected the conclusion of the judgment, and it is obvious that it affected the judgment

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.