The claim for transfer of shares in this case does not meet the requirements for the preservation of claims.

Considering the borrowed-name shares he owns, since active property exceeds a small property, the Plaintiff’s claim in this case cannot be deemed as an insolvent condition. As such, it cannot be deemed that the requirements for preserving the claim in this case were satisfied. In calculating the active property of the defaulted taxpayer, it is reasonable that the delinquent taxpayer includes the borrowed-name shares, the real owner.

Article 404(1) of the Civil Act

2015Gahap50309 Action for Claim for Transfer of Shares

1. Korea;

1. AAA corporation;

August 25, 2016

October 13, 2016

1. The plaintiff's lawsuit shall be dismissed.

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

Cheong-gu Office

피고는 별지 '명의신탁 주식의 표시' 기재 각 주식에 관하여 BBB(XXXXXX-XXXXXXX) 명의로 주주명부상의 명의개서절차를 이행하라.

1. Basic facts

(a) BB shall be the chairman of the CCC, which is a business group that runs a joint, paper, and Pampling business in Indonesia;

B. Upon conducting a tax investigation on BB around March 2014, the director of the Seoul Regional Tax Office: (a) held that BB falls under the “resident of the Republic of Korea” under the Income Tax Act; (b) held that it was liable to pay taxes on the income; and (c) held that BB did not pay taxes by holding shares of affiliate companies to CCC in the name of executive officers and employees of CCC, PPP, etc. Around that time, the director of the Seoul Regional Tax Office notified the director of the Seoul Regional Tax Office that BB should impose global income tax on the amount of domestic

C. As to BB on March 18, 2014, the head of the XX tax office: (i) held Switzerland’s foreign bank accounts, including Switzerland, from 2003 to 2012, 51,403,196,820 won total of the interest income, dividends, etc. on each account; (ii) in relation to transfer of shares issued by domestic and foreign corporations, including DD Investment Co., Ltd, EEEEE Co., Ltd., Ltd., 201 and 2012, BB made a total of 41,106,734,490 won transfer income tax; (iii) held 2BB’s total of 36,50 won transfer income tax, 207, 206, 365, 207, 208, 206, 365, 207, 206, 207.

D. BB protested against it, and filed a tax appeal with the Director of the Tax Tribunal on May 9, 2014. On May 2, 2016, the Director of the Tax Tribunal rendered a decision to re-examine the tax base and tax amount of the instant disposition by re-auditing it to the Director of the Tax Office to correct the tax base and tax amount of the instant disposition in accordance with Article 4 of the Agreement between the Government of the Republic of Korea and the Government of the Republic of Indonesia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income. BB is a resident of a country with a permanent residence in the Republic of Korea and the Indonesia. BB is a resident with a permanent domicile in the Republic of Korea and the Republic of Indonesia. However, in personal relations, even if the submitted evidence alone is more closely known to either of the two countries.

E. As a result of reinvestigation, the head of the XX Tax Office determined BB as a resident of the Republic of Korea and maintained the instant disposition, and on July 13, 2016, BB filed an administrative suit against the Seoul Administrative Court Decision 2016Guhap69079 against the head of the XX Tax Office seeking revocation of the instant disposition.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1 and 2, purport of the whole pleadings

2. Determination on this safety defense

A. Summary of the defendant's assertion

In order to preserve national tax claims against BB based on the instant disposition, the Plaintiff sought implementation of the transfer procedure, on behalf of the Defendant, of BB on behalf of the Defendant, in relation to each of the shares stated in FF, GG, HH, III, and JJ (“each of the shares named in title trust” owned by the Defendant in the name of FF, HH, III, and J, with respect to each of the shares in title trust (hereinafter “each of the shares in this case”), the Defendant asserted that the Plaintiff’s claim against BB was not determined since the Plaintiff’s claim against the preserved claim was pending in the lawsuit claiming the validity of the instant disposition, and that, considering the value of shares owned by BB, including each of the shares in the name of others, including the nominal shares in this case, the active property of BB is larger than the national tax claim that is a passive property, and thus, the instant lawsuit is unlawful on account of the lack of the need for preservation, which is the requirement of creditor subrogation lawsuit.

B. Determination

1) In cases where a creditor’s right to a debtor who is to be preserved by subrogation is a monetary claim in subrogation of a debtor, that is, the need to preserve the creditor’s right to a third debtor on behalf of the debtor (see, e.g., Supreme Court Decisions 93Da28867, Oct. 8, 1993). Here, the obligee’s insolvency as a requirement for subrogation means that the debtor has no means to perform his/her obligation. In particular, where it is impossible to expect voluntary performance, repayment through compulsory execution should be considered. Therefore, it should be an important factor to determine whether a creditor has the ability to perform his/her obligation (see, e.g., Supreme Court Decisions 2004Da2564, Feb. 10, 206; 2008Da76556, Feb. 26, 2009). 197.

Meanwhile, where a person has invested shares in his/her name with the consent of another person in acquiring shares and paid the price for shares, only the nominal borrower who actually subscribed shares and paid the price for shares shall become a shareholder regardless of whether he/she has taken the procedure of transfer, etc. from the nominal lender as a de facto subscriber (see, e.g., Supreme Court Decisions 75Da410, Jul. 8, 1975; 2007Da70599, Mar. 27, 2008).

2) In light of the above legal principles, comprehensively taking account of the following facts and circumstances acknowledged by the health team, the evidence mentioned above, the evidence mentioned in Gap evidence Nos. 3 through 6, and the purport of Gap evidence Nos. 2 and 3 as a whole and the pleading, it is difficult to deem that Eul was insolvent, and there is no other evidence to acknowledge that Eul was insolvent.

① Around March 2014, the director of the Seoul Regional Tax Office found that the property owned in Korea was the total amount of KRW 1,62.5 billion (Evidence 1) of the property owned in Korea by BB as the result of a tax investigation conducted with respect to BB (Evidence 1). In other words, the head of the Seoul Regional Tax Office investigated that the property acquired in his own name was the total of KRW 10 billion (23 items, such as KS), KRW 2.1 billion of real estate (7 items, such as KK), KRW 18.8 billion of stocks (7 items, such as KKK), KRW 8.1 billion of deposit (LLLL), KRW 1,23.9 billion of borrowed stocks (MMMM Co. 36.1 billion, NNNNNNN, KRW 852 billion, EEEEE, and KRW 2.3 billion), and the head of the Seoul Regional Tax Office maintained the above disposition of KRW 1,625.2 billion of the instant shares (B.3 billion).

그런데 원고는 이 사건 소송에서는 소 제기일인 2015. 8. 7. 현재 BBB의 적극재산은 부동산(토지, 건물 23개) 6,142,392,273원, 회원권 7개 2,023,500,000원, 예금증권 745,271,229원, 주식 46,121,689,800원(OOOOOOOO 주식회사 206,876,500원, 피고 10,806,120,000원, EEEE 주식회사 1,441,134,000원, PPPP 주식회사 30,308,381,700원, NNNNN 주식회사 428,120,000원, QQQQQQ 주식회사 72,057,600원, 주식회사 RRRR 59,000,000원, 주식회사 SSSS 2,800,000,000원), 합계 55,032,853,302원이고, 이는 소극재산인 체납세액 1,168억 원에 미달하여 채무초과 상태에 있다는 주장을 하고 있다.

As a result, the Plaintiff excluded the shares held by BB in the name of another person, such as each of the instant borrowed-name shares, from active property. In calculating the value of active property, real estate is calculated based on the officially assessed individual land price, and the shares were calculated based on the “non-listed stocks simplified assessment” method (TT, UUUU, V, PPPPP, and WW shares price owned by BB were assessed as 0 won in total).

② However, each of the instant shares, the beneficial shareholders of BB, is included in the computation of the property to determine BB insolvency of BB. This is because the Defendant’s total number of shares is 120,000 shares, and the Defendant’s shareholders are FF (12,00 shares), GG (12,00 shares), HH (42,00 shares), BB (36,00 shares), JJ (62,00 shares), 360 shares, 20 shares, 20 shares, 360 shares, 20 shares, 30 shares, 40 shares, 60 shares, 60 shares, 20 shares, 30 shares, 60 shares, 20 shares, 40 shares, 60 shares, 20 shares, 360 shares, and 6,00 shares, 40 shares, 60 shares, 60 shares, and 200 shares, 60 shares, 200 shareholders of each of the instant shares, as the instant shareholders.

③ As seen earlier, the director of the Seoul Regional Tax Office investigated BB as a beneficial shareholder of KRW 36.1 billion of shares of the said three companies, KRW 85.2 billion of shares of the said three companies, KRW 2.7 billion of shares of the EE company, and KRW 1,23.9 billion of shares of the said three companies (based on the evidence evidence No. 8, BB stated that the EE company shares were held in title trust with HH and JJ on March 11, 2014). If it is acknowledged that BB is a shareholder based on the shareholder’s title trust relationship, it is reasonable to include the above three companies’ assets in the calculation of the market value of each of the above three companies’ assets, and that it is not reasonable to include the value of each of the above three companies’ assets in the calculation of the market value of each of the outstanding shares, and that it is not reasonable to include the above three companies’ positive assets in the calculation of the market value of each company’s assets in arrears as a real title trust relationship.

3) Therefore, the instant lawsuit is unlawful as it does not recognize the requirements for preservation, which is the element of the obligee subrogation lawsuit, without having to further examine other issues.

3. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed.