A. The purport and scope of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) concerning deemed donation

(b) The case holding that it is due to the limitation of the Commercial Act requiring not less than seven promoters in establishing a stock company, and it is not intended to avoid gift tax due to donation.

A. The legislative intent of Article 32-2(1) of the former Inheritance Tax Act is to prevent the abuse of the title trust system by concealing donations in property requiring the transfer or exercise of rights, such as registration, recording, or transfer of rights, and thus, if the title trust system is different from the name of registration, etc., not to avoid gift by concealing donations, but to avoid gift tax, it shall not be deemed a donation if it becomes a legal limitation or any other similar inevitable reason.

(b) The case holding that it is due to the limitation of the Commercial Act requiring not less than seven promoters in establishing a stock company, and it is not intended to avoid gift tax due to donation.

Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990)

A. Supreme Court Decision 91Nu3956 delivered on March 10, 1992 (Gong1992,1326) 92Nu4383 delivered on September 8, 1992 (Gong1992,2914) 92Nu10685 delivered on March 23, 1993 (Gong193,1319)

[Defendant-Appellee] Plaintiff 1 et al.

The Head of Seoul Western Tax Office

Seoul High Court Decision 92Gu10274 delivered on October 16, 1992

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, since it is hard to find out the above 10,00 shares owned by the non-party 1 and the non-party 2 were listed as shareholders of the above 10,950 shares on the register of shareholders of the non-party 1 and it was hard to find out that the non-party 1, the actual owner of the above shares and the nominal owner of the non-party 2 were different from the non-party 1, the court below found that the non-party 2 was donated the above shares to the non-party 1 pursuant to Article 32-2 (1) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 190; hereinafter the same shall apply) that the non-party 1 did not own the above shares at the time of the non-party 2's incorporation of the above 7-party 1 and the above 7-party 2's establishment of the non-party 1's investment trust shares (the above 7-party 1's establishment evidence).

However, the legislative intent of Article 32-2(1) of the former Inheritance Tax Act is to prevent the use of the title trust system by concealing donations in property that requires the transfer or exercise of rights, such as registration, recording, or transfer of rights. Thus, if the name of the title trust is different from that of the registration, etc. is not to avoid gift tax by concealing donations, but to avoid gift tax, due to statutory restrictions or other similar inevitable circumstances, it does not constitute gift (see, e.g., Supreme Court Decisions 91Nu4669, Feb. 10, 1991; 91Nu3956, Mar. 10, 192; 92Nu4383, Sept. 8, 1992; 92Nu1625, Jan. 12, 1993).

According to the records, the above non-party 1, as a graduate student at the time of the establishment of the above non-party company, did not have any specific income, and thus, donated shares (e.g., gift tax was imposed and confirmed as KRW 635,130,00 and KRW 105,85,000) to the non-party 2, his father, or the shares acquired thereby, was not under circumstances to donate to the non-party 1. However, even if the non-party 1 established a stock company and operated the company as a de facto one, even if the incorporation was conducted, at least seven promoters of the Commercial Act need to be appointed, and he borrowed or borrowed the name of the non-party 3, his wife, the plaintiff, his father-child, his father-child, the plaintiff, his father-child, and his school-friendly relationship. Therefore, in light of these facts, it is recognized that the above non-party 1's six promoters, other than the above non-party 1, did not exercise his shareholder's right.

Therefore, the judgment of the court below that held otherwise is erroneous in the misapprehension of the legal principles of Article 32-2 (1) of the former Inheritance Tax Act, failing to exhaust all necessary deliberations, or violating the rules of evidence, and such illegality has influenced the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)