[1] Whether transfer of property pursuant to an invalid sales contract is subject to transfer income tax or gift tax (negative)

[2] Criteria for applying the principle of good faith in tax litigation

[3] Whether it is against the good faith to dispute the obligation to pay gift tax without restoring the invalid registration that is void by a person who has lost the provisions of the Act on the Utilization and Management of the National Territory with respect to a sale real estate (negative)

[1] As long as a sales contract is null and void, even if the purchase price was paid to the transferor, it cannot be deemed as a transfer of assets subject to capital gains tax or an income from the transfer of assets. Therefore, it is not subject to capital gains tax, and it is also illegal to impose gift

[2] The application of the principle of good faith in tax litigation can be divided into the application of the law related to the procedure law and the substantive law. The application of the law related to the procedure law in tax litigation cannot be specifically divided into those in civil litigation. However, the application of the law related to the substantive law that strongly acts as the principle of legality by the principle of legality is limited rather than the judicial principle under the principle of private autonomy, and even if it is recognized as necessary to protect specific trust by sacrificeing the legality. Furthermore, if a taxpayer commits an act against his past speech and behavior against the tax authority, the taxpayer shall be subject to the disadvantageous disposition such as deprivation of benefits such as tax reduction and exemption under tax law, penalty provisions under tax law, etc., such as deprivation of the tax return, failure to report, failure to record, and submission of materials, etc., and the tax authority exercises its superior authority in tax law, such as having the right to investigate, and the burden of proof as to the legality of the taxation disposition shall be considered as a matter of principle, the application of the principle of good faith to the taxpayer should not be expanded and interpreted.

[3] [Majority Opinion] Under the principle of substantial taxation, taxation should be based on the substance of an act, not the external form of the act, but on the basis of the substance of the transaction. As such, even if the grounds for registration are traded, if the substance of the transaction is donated, it should be imposed as a gift. The same applies to the opposing cases. It is difficult for a transaction party to take registration differently from the substance and to claim that the substance of the transaction is different from the grounds for registration on the registry, without registering due to legal restrictions, etc., and then in a lawsuit, the substance of the transaction differs from the substance on the registry. In addition, the tax authority has the right to conduct a field investigation, and in addition, has the duty to investigate and impose the substance, and bears the burden of proof of the legality of the taxation disposition, the tax authority, who did not exercise the right to conduct a field investigation, may not be deemed to have performed a serious good faith merely by giving prior notice that the taxpayer himself/herself had registered a different grounds for registration, and even if the tax authority has trusted only the grounds for registration on the registry,

On the other hand, the issue of whether a tax disposition has been restored to the original state before the act in question, such as cancelling the registration, cannot be a requirement for determining whether the act in good faith, and the tax disposition imposed on the registration of invalidation based on the registration of invalidation is unlawful regardless of cancellation of the registration, regardless of the Supreme Court's previous opinion and the Supreme Court's previous opinion that the request for reduction correction was not introduced before the amendment of the Framework Act on National Taxes on December 22, 1994, and the taxpayer's remedy procedure following changes in the ex post facto change in circumstances, so once a tax disposition is lawful, it cannot be asserted that the tax disposition has already been duly finalized even if the restitution was made after the correction was made, unless the registration is cancelled and its substance coincide with the real substance. In light of the fact that the tax disposition should be imposed based on the registered reason and the assertion by the real substance cannot be permitted against the principle of good faith, the determination of whether the act in good faith can be considered.

Therefore, if the registration of ownership transfer based on donation was made without a land transaction permission after the conclusion of a sales contract, and the registration of ownership transfer based on donation was final and conclusive, and the registration of ownership transfer also becomes null and void, and thus, there is no obligation to pay the gift tax. Therefore, the obligation to pay the gift tax shall not be deemed to violate the principle of good faith and good faith or the principle of good faith, regardless of whether it is null

[Separate Opinion] If a person who lost the provisions of the Act on the Utilization and Management of the National Territory and completed the registration of transfer of ownership on the grounds of donation maintains the lawsuit of revocation of disposition of imposition of gift tax, which did not remove such appearance even at the time of the closing of pleadings at the fact-finding court, unlike the substantive law treating the above land as not having been donated, such lawsuit shall be deemed as an abuse of the right by means of an unfair lawsuit without any qualification or benefit

[Dissenting Opinion] The principle of good faith or the principle of good faith is that a person who expresses a fact by his past speech or behavior is not allowed to deny the existence of a fact against the other party who believed the existence of the fact and commits any act. This is derived from the concept of justice that constitutes the basis of law, and therefore, it is just and reasonable in the area of public law as well as in the area of private law. Accordingly, Article 15 of the Framework Act on National Taxes explicitly provides that the principle of good faith, which is the basic principle of private law, is applied to the tax law, which is a public law. In order to apply this principle to taxpayers, the first taxpayer must have the possibility of objectively contradictory behavior and subjective liability, and the second taxpayer's trust should exist at the tax office which has the value to be protected by this principle. Thus, this principle does not necessarily require that two should be determined by comprehensively taking into account the degree of inconsistency, the degree of subjective possibility, and the degree of application of this principle, as well as the degree of trust and value.

In a case where a gift tax has been imposed after the registration of ownership transfer on the ground of gift by leaving away the provisions of the Act on the Utilization and Management of the National Territory, the obligation for the payment of the gift tax is disputed, it is clear that there is an objective contradictory behavior in that the act of donation was done first, but the act of donation was not true, and then, in order to avoid the land transaction permission system under the Act on the Utilization and Management of the National Territory, which is a mandatory law, it is intended to maintain the illegal state favorable to himself and remove only the tax disposition disadvantageous to himself while taking advantage of the legal status favorable to himself. In other words, it is extremely high possibility of subjective liability in that it is intended to abuse only the legal status favorable to himself while doing the act inconsistent with the former act. In addition, in a case where the registration was made by collusion with the trading counterpart, the tax authority trusted the reason for registration on the register is a bona fide third party, and in view of the legal principle of legitimate presumption of the Act, it should be justified to take advantage of the legislative intent of the Act on the Utilization and Management of the National Territory.

Therefore, in such a case, a person’s assertion about the obligation to pay gift tax constitutes all the requirements for applying the good faith principle to taxpayers under the tax law. Furthermore, considering the degree of inconsistency, the degree of subjective burden on taxpayers, the degree of protection value of trust, and the legislative purport of the Act on the Utilization and Management of the National Territory, etc., it is reasonable to reject such claim as contrary

[1] Articles 88(1) and 94 of the Income Tax Act, Article 29-2(1)1 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) / [2] Article 15 of the Framework Act on National Taxes / [3] Article 2(1) of the Civil Act, Article 15 of the Framework Act on National Taxes, Article 21-3(1) and (7) of the Act on the Utilization and Management of the National Territory, Article 29-2(1)1 of the former Inheritance Tax Act (amended by Act No. 5193 of Dec. 30, 1996) (see Article 2(1) of the current Inheritance Tax and Gift Tax Act)

[1] Supreme Court Decision 91Nu2915 delivered on December 10, 1991, Supreme Court Decision 92Nu8361 delivered on January 15, 1993, Supreme Court Decision 92Nu8361 delivered on January 15, 1993, Supreme Court Decision 96Nu8901 delivered on January 21, 1997 (Gong1997Sang, 67Sang, 673 delivered on June 8, 1993), Supreme Court Decision 96Nu979 delivered on June 24, 197, Supreme Court Decision 92Nu9749 delivered on June 8, 197 (Gong1993Ha, 2041 delivered on September 24, 1993), Supreme Court Decision 96Nu97499 delivered on September 24, 209)

Kim Tae (Attorney Kim Ba-young, Counsel for the defendant-appellant)

Head of Jinju Tax Office

Busan High Court Decision 95Gu3176 delivered on November 10, 1995

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

The grounds of appeal and supplemental appellate brief are examined together with some supplementary appellate brief not timely filed.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff purchased the land of this case from the non-party Lee Jong-ju on December 1990, but did not grant land transaction permission, and completed the registration of transfer of ownership based on the donation on March 8, 191. The court below determined that the plaintiff's assertion that the disposition of imposition of gift tax of this case was purchased or acquired, and that it was not a donation, and that it was not allowed as an act contrary to the principle of trust and good-faith or the principle of gold speech, since it was merely an abuse of the legal status favorable to himself, and thus, it is not allowed as an act contrary to the principle of trust and good-faith or the principle of gold speech.

2. A. A. Any transaction violating the mandatory law differs from its purport, degree of ethical criticism, safety of the transaction, trust of the parties, and impartiality and effectiveness. A sales contract concluded without permission for the land within the regulatory zone under the Act on the Utilization and Management of the National Territory is in a state of flexible invalidation until permission is granted. However, if a sale contract was made without permission for the land transaction, the contract is finally null and void, and its ownership transfer registration is null and void as there are no grounds for the transfer registration (see, e.g., Supreme Court en banc Decision 90Da1243, Dec. 24, 1991; Supreme Court Decision 93Da44319, 44326, Dec. 24, 1993; Supreme Court Decision 94Da4806, Dec. 27, 1994; Supreme Court Decision 2005Nu193196, Dec. 195).

B. The application of the principle of trust and good faith in tax litigation can be divided into the application of the law related to the procedure law and the substantive law, and the application of the law related to the procedure law in tax litigation cannot be specifically divided into those in civil litigation. However, the application of the principle of trust and good faith with respect to the taxation substance law which strongly acts under the principle of trust and good faith shall be limited to the cases where it is recognized as necessary to protect specific trust even if the application of the principle of trust and good faith is restricted rather than the judicial system under the principle of private autonomy. Furthermore, in a case where a taxpayer commits an act against his past speech and behavior against the tax authority, the taxpayer shall be subject to the disadvantageous disposition such as deprivation of benefits such as tax reduction and exemption under tax law, penalty provisions under tax law, etc., and the tax authority exercises its superior authority in taxation law, such as having the right to investigate, and the burden of proof with respect to the legality of the taxation disposition shall be extremely limited to the taxpayer, and the application of the principle of trust and good faith to the taxpayer shall not be extended to 198.3196.

Therefore, in applying the principle of trust and good faith and the principle of gold-competence, there is an objectively contradictory behavior, and the behavior is derived from the taxpayer's severe acts of worship, and the trust of the tax authorities caused thereby should be protected.

C. Meanwhile, the purport of allowing land transactions within the regulation zone under the Act on the Utilization and Management of the National Territory is to allow land transactions between individuals in the regulation zone after examining whether the land transactions between individuals conflict with the purpose of preventing speculative transactions under the above Act, and to prohibit the validity of the contract under the restraint of the parties without such permission. Thus, if the parties to the transaction without such permission rejects the claim for invalidation on the ground that it is an exercise of rights contrary to the principle of good faith, it would result in completely excluding the legislative intent of the Act on the Utilization and Management of the National Territory to prohibit the entry into force of the speculative transaction, and thus, such assertion cannot be deemed to be contrary to the principle of good faith in private law (see, e.g., Supreme Court Decisions 93Da44319, 44326, Nov. 21, 195; 94Da20532, Feb. 28, 1995).

3. A. We examine the case of this case, since the plaintiff's land transaction permission was not granted after the conclusion of the contract, the contract was finally null and void as a result of the registration of transfer of ownership based on the gift, and the registration of transfer of ownership becomes null and void as there is no ground for the registration of transfer of ownership. As long as the plaintiff becomes unable to acquire the land of this case, it is not liable to pay the gift tax

B. However, in such a case, it is reasonable to examine whether the Plaintiff’s assertion disputing the obligation to pay gift tax violates the principle of good faith or the principle of good faith.

The plaintiff's assertion is merely a filing of a lawsuit on the argument under tax substance law that has no obligation to pay gift tax, and it cannot be said that the application of the principle of trust and good faith related to the tax procedure law is an issue, and it is a question whether it violates the principle of trust and good faith related to

Under the principle of substantial taxation, taxation is based on not the appearance of the act but the substance. If the substance of the cause for registration is donated even if the cause for registration is the sale and purchase, it shall be imposed as a gift, and the same applies to the opposing cases. It is difficult for a transaction party to register the substance differently from the substance by reason of statutory restrictions, etc., and to claim that the substance is different from the cause for registration on the registry in a lawsuit after registering the substance. In addition, as seen earlier, the tax authority has the right of on-site investigation and has the duty to investigate and impose the substance in this case, and bears the burden of proving the legality of the taxation disposition. In addition, even if the tax authority reported only the cause for registration on the registry and trusted it, it cannot be said that the tax authority, which did not exercise the right for on-site investigation, has a duty to investigate and impose the substance and has the burden of proving the legality of the taxation disposition, without notifying in advance that the taxpayer himself/herself had registered the cause for registration differently. In addition, even if the tax authority trusted this, it cannot be regarded as a trust worth

On the other hand, the issue of whether or not the act was restored to the original state before the act in question, such as cancelling the registration, cannot be a requirement for determining whether or not the act was committed, and the tax assessment imposed based on the registration of invalidation is illegal regardless of cancellation of the registration, and the previous opinion of the court of this case, regardless of cancellation of the registration, and the taxpayer's remedy procedure following changes in the situation after the amendment of the Framework Act on National Taxes was not introduced before December 22, 1994, and thus, if a tax assessment is lawful after the due date, it is not possible to contest a legitimate tax assessment. In light of the fact that if the registered contents and substance are different, the tax assessment should be imposed based on the registered cause, and if the assertion of the substance is not permissible against the principle of good faith, it would result in a substantial revision of the substance over form principle, it shall not be considered in determining whether the act was restored to the original state.

Ultimately, in this case, the Plaintiff’s assertion of the obligation to pay gift tax cannot be said to violate the principle of good faith and good faith or the principle of good faith.

C. In addition, even in the judicial relations, the parties who traded with a view to preventing the elimination of the legislative intent of the Act on the Utilization and Management of the National Territory do not refuse to assert the invalidity by themselves, and if the tax law rejects the assertion of invalidity by violating the principle of good faith, the application of the principle of good faith to taxpayers should be extremely limited, and it would result in undermining the principle of no taxation without law because it would allow gift tax to be imposed differently from the substance of the gift, by allowing the Plaintiff who did not acquire the property through the gift to whom it was not acquired. Since penal provisions are provided for the evasion of the regulation on land transaction under the Act on the Utilization and Management of the National Territory, it is reasonable to impose sanctions as prescribed by law.

D. Thus, the judgment of the court below that held that the plaintiff's assertion that the plaintiff's obligation to pay gift tax was against the principle of trust and good faith or the principle of no-competence, not the acquisition of the land of this case by donation, is erroneous in the misapprehension of the legal principles as to the principle of no-competence, which affected the conclusion of the judgment, and thus, the ground of appeal

4. 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 on the bench, and there is a dissenting opinion by Justice Park Jong-ho, Justice Park Jong-ho, Justice Park Jong-chul, and Justice Cho Chang-chul.

5. The separate opinion by Justice Lee Yong-hoon is as follows.

The Plaintiff purchased the instant land, but did not obtain land transaction permission, and completed the registration of transfer of ownership with a gift certificate prepared between the seller and the registration of transfer of ownership with a certificate of cause. After imposing gift tax on the instant land, it is apparent in the record that the Defendant did not cancel the registration of transfer of ownership, which became null and void as a result of the violation of the Act on the Utilization and Management of the National Territory, even at the time when the court below held that the Plaintiff did not cancel the registration of transfer of ownership of this case, which was null and void as a result of the violation of the Act on the Utilization and Management of the National Territory at the time when the court below held that the Plaintiff did not cancel the registration of transfer of ownership of this case which was null and void. Therefore, denying the Plaintiff’s claim against the obligation to pay gift tax under the substantial tax law on the ground that the Plaintiff’s assertion against the obligation to pay gift tax is in violation of the principle of trust and good faith or the principle

However, even if the registration is a valid registration such as the registration of transfer of ownership in the name of the Plaintiff, while the parties did not remove the invalid external form, it is registered as the Plaintiff on the registration ledger. In addition, since the seller and the purchaser registered the land transaction in the name of the Plaintiff as the purchaser on the ground of donation in order to avoid regulating the land transaction in the Act on the Utilization and Management of the National Territory, the Plaintiff will actually use and benefit from the land of this case on the basis of the above illegal agreement with the seller, and the economic substance would reach the result that the Plaintiff would have reverted to the Plaintiff.

However, Supreme Court Decision 92Nu8361 delivered on January 15, 1993 ruled that in a situation where a real estate transfer contract between the parties is null and void because a land transaction permit was not obtained, even if the purchase price was first paid and the transferor keeps it in custody, the transfer income tax may not be imposed on the seller of the land. Thus, in this case, even in this case, the transfer income tax may not be imposed on the seller of the land. Therefore, in this case, even if the ownership transfer registration was made for the reason of donation in order to avoid the regulation of land transaction permission and the parties did not remove the external form, the transfer income tax may not be imposed on the seller, and even if the economic substance belongs to the plaintiff, it would be unreasonable to view that the gift tax cannot be imposed.

However, inasmuch as the registration such as the registration of ownership transfer of the Plaintiff at any time is in an unstable position, even if the seller or even the creditor of the seller seeks the cancellation thereof, and thus, if the Plaintiff’s claim under the substantive law seeking the revocation of the Plaintiff’s revocation of the imposition of the gift tax is denied based on the general principle of trust and good faith, it cannot be deemed unreasonable to accept this result as it is, since the Plaintiff would be treated as being donated land differently from the substantive law. However, even though the Plaintiff sought the revocation of the gift tax as in the instant case and did not remove the external form of invalidation, if the court cites such a lawsuit, it cannot be said that the basic request of the court to realize justice would result in a significant damage by itself by the court in charge of the trial.

In the past, the Supreme Court of Korea approves the resignation of a director through a resolution to transfer the right of management of a school juristic person to another person, and thereafter takes over and manages the school juristic person without any objection to the transfer of the right of management. If the money received from the present director is not received as a result of the transfer of the right of management, it is thought that the lawsuit seeking confirmation of existence of a resolution of the board of directors for the purpose of receiving a certain amount of money from the present school juristic person or the present director (see Supreme Court Decision 74Da767 delivered on September 24, 1974). If the transfer of the right of management of the company was made before the issuance of the share certificates at the time of the former Commercial Act and thereafter disputes the validity of the transfer of the right of management of the company, the Supreme Court has determined that the transfer of the right of ownership should be made before the issuance of the share certificates at the time of the previous Commercial Act and that the transfer of the right of ownership should not be held in the form of a lawsuit for the removal of the right and interest of another 14th representative director and it should not be held.

A judgment is the ultimate means for the realization of a claim under the substantive law held by the parties. However, the exercise of rights under substantive law through a trial must be carried out in a trusted way, and it does not necessarily mean to realize that right, regardless of any unlawful means and method. Moreover, the attitude of a person who illegally deviates from the provisions of this Act, by refusing to remove the external punishment, should not be respected. If a party’s right with this attitude is realized through the process of trial, the original purpose of realizing justice through a trial is damaged, and the court will only cause the increase of the people’s confidence in the trial.

Therefore, it is reasonable to remand the case to the court below for the purpose of examining and determining whether the exercise of the right of action is reasonable in light of the principle of good faith by further examining whether the party refuses to remove the above illegal appearance, not the majority opinion, until the end of the removal of the above illegal appearance.

6. Dissenting Opinion by Justice Park Jong-ho, Justice Jeong-ho, Justice Park Jong-ho, and Justice Cho Chang-chul is as follows.

A. Location of the issue

The issue of this case is whether the imposition of the gift tax under the substance over form principle is unlawful on the grounds that the tax authority, who trusted the grounds for registration on the registry, purchased the farmland within the land transaction permission zone, but did not obtain any land transaction permission, made a registration of transfer for the purpose of avoiding the regulation on the land transaction under the Act on the Utilization and Management of the National Territory because it did not receive any land transaction permission, and made a donation for the purpose of evading the regulation on the land transaction under the Act on the Utilization and Management of the National Territory. The above imposition of the gift tax under the substance over form principle is against the principle of good faith or the principle of good faith (hereinafter the principle of good faith, etc.).

B. The Majority Opinion argues that there exists an objectively contradictory behavior in order to apply the principle of good faith under tax substance law, and that the behavior was derived from the taxpayer’s severe act of worship, and that the trust of the tax authority caused thereby should be worthy of protection. In this case, it does not fall under any of the above requirements, and that the rejection of the Plaintiff’s claim for invalidation violates the principle of good faith against the taxpayer is extremely limited to the application of the principle of good faith to the taxpayer. In addition, it is contrary to the legal principle that the application of the principle of good faith against the taxpayer should be recognized, and that the Plaintiff’s claim

However, such a view by the Majority Opinion is inconsistent with the attitude of the previous Supreme Court precedents that applied the principle of good faith to the person liable for duty payment, etc., as well as with the legislative intent of the Act on the Utilization and Management of the National Territory, and is inconsistent with the concept of justice.

C. The principle of good faith or anti-competence means that a person who expresses a fact by his past speech or behavior is not allowed to deny the existence of a fact against the other party who believed the existence of the fact and committed any act. This is derived from the concept of justice that constitutes the basis of law, and therefore, it is just in the area of private law as well as in the area of public law.

Article 15 of our Framework Act on National Taxes provides that "When a taxpayer performs his/her duty, he/she shall be in good faith and sincerity in accordance with good faith. The same shall also apply to a tax official performing his/her duty," the principle of good faith, which is the basic principle of private law, is stipulated in the tax law, which is a public law.

In order to apply this principle to taxpayers, first, there should be objectively contradictory behavior and subjective responsibilities to taxpayers, second, there should be trust of tax authorities that are worth being protected by them, and this principle does not necessarily require that both is strict meaning (which is not necessarily denied the application of this principle because one is attached to one is not necessarily denied), and the degree of inconsistency, the degree of subjective arbitrability, and the degree of protection value of trust should be determined by comprehensively considering the degree of protection value of trust.

However, in light of the fact that the tax authority has superior position with respect to a taxpayer, and that there is a feature that the principle of legality is more strongly required by the principle of no taxation without law in the tax law relationship, the subjective possibility of attributable to a taxpayer should be more severe than that of the judicial area. As such, as the majority opinion pointed out properly, the application of the principle of no taxation with respect to a taxpayer should be limited to cases where the degree of subjective attributableness (the degree of reply) is extremely severe.

D. Furthermore, in the instant case, whether the Plaintiff’s assertion falls under the foregoing requirement to apply the good faith principle, etc.

(1) As to whether the Plaintiff exists objectively contradictory behavior, it is obvious that there is an objective contradictory behavior in that the Plaintiff voluntarily received the farmland in this case and completed the registration of ownership transfer based on the donation, and then the gift tax was imposed accordingly. In the litigation proceeding seeking revocation of the relevant disposition, the Plaintiff’s assertion that the said farmland was not donated is obvious in that the Plaintiff’s speech and behavior of donation was made, but the Plaintiff asserted that the said behavior of donation was not true. Therefore, in this case, it is difficult to understand that the Majority Opinion stated that it was difficult to deem the Plaintiff to have committed contradictory behavior in this case.

(2) As to whether there is a subjective possibility for the Plaintiff, the Plaintiff cannot be said to have a high possibility of subjective responsibility in that it intends to abuse only the legal status favorable to himself/herself while doing acts inconsistent with the former’s act, in that it is highly likely that the Plaintiff has a high possibility of subjective responsibility, in that it is a person who was an illegal state (e.g., ownership transfer registration) in order to circumvent the land transaction permission system under the Act on the Utilization and Management of the National Territory, which is a mandatory law, while maintaining the illegal state favorable to himself/herself, and intends to remove only the taxation disadvantageous to himself/herself.

This can be seen from the previous attitude of the Supreme Court regarding whether to apply the principle of good faith to taxpayers under tax law.

In other words, the Supreme Court previously held that even if a taxpayer had previously committed an act inconsistent with his own act, it cannot maintain the unlawful facts or legal status (such as actual accounts, tax returns, etc.) favorable to himself prior to the taxing authority’s actual facts and other taxation dispositions, and that the taxpayer tried to remove the whole or part of the taxation disposition (Supreme Court Decisions 85Nu480 Decided April 8, 1986, 92Nu12483 Decided June 8, 1993, 93Nu6232 Decided September 24, 1995, 95Nu10525 Decided November 7, 1995, and 9Nu15261 Decided March 22, 196). This is the same as the one of the taxing authorities’ subjectively accepted the same as the one of the two different tax dispositions, and the one of the two different from the one of the two different from the one of the two different from the one of the two different from the one of the two different from the one of the other.

① The Majority Opinion argues that, on the ground that a tax disposition imposed on the basis of the registration of invalidation was unlawful without relation to cancellation of registration and ② that a tax disposition was not restored to its original state, the Majority Opinion argues that the restoration of the original state to its original state is not subject to consideration in determining whether the registration was made by cancelling registration, on the ground that it would result in a substantial revision of the principle of substantial taxation, even if the original state is restored to its original state.

However, Supreme Court Decision 64Nu84 delivered on November 24, 1964, which held that a tax disposition imposed on the basis of the registration of invalidation is unlawful without regard to cancellation of the registration, is related to a case in which the application of the principle of good faith, etc. is not a problem. ② Even if based on the opinion that the application of the principle of good faith, etc. should be permitted in this case, the application of the principle of good faith should not be permitted in cases where the registration is cancelled by the date of closing argument at the court of fact-finding proceedings. Thus, as alleged in the majority opinion, it is not impossible to relieve the taxpayer according to the change in circumstances, and ③ in cases where the registered contents and substance are different, the application of the principle of good faith should not be excluded by allowing the application of the principle of good faith, etc. in any case, unless the registration is cancelled, and the application of the principle of good faith is extremely limited to cases where only a person intends to abuse the legal status favorable

The Plaintiff’s assertion that the Plaintiff’s behavior, while filing a lawsuit to remove an unfavorable taxation to himself, practically exercises the ownership of the farmland of this case on the basis of an unlawful agreement with its purchaser, should not be subject to consideration in determining whether the Plaintiff’s behavior, which seeks to remain as an effective owner of the farmland of this case on the registry, should not be subject to consideration in determining whether the Plaintiff’s subjective return possibility or distribution is possible.

(3) In this case, where the Plaintiff purchased land and completed registration based on donation in collusion with the other party to the transaction, the tax authority that trusted the grounds for registration on the register shall be deemed a bona fide third party. In light of the legal principles of the presumption of legitimacy of registration, it shall not be deemed as a trust worth protecting under our legal system. Accordingly, we cannot agree with the majority opinion that the tax authority’s trust cannot be deemed as a trust worth protecting it without any particular reason.

(4) As such, the Plaintiff’s above assertion constitutes all requirements for applying the principle of good faith to taxpayers under the tax law, and further, considering the degree of inconsistency, the degree of subjective accountability, and the degree of protection value of trust, the Plaintiff’s above assertion violates the principle of good faith, and thus, it should be rejected.

D. In addition, the majority opinion argues that the parties to the transaction do not refuse to assert invalidation on their own in order to prevent the elimination of the legislative intent of the Act on the Utilization and Management of the National Territory in a judicial relationship. However, the majority opinion argues that the legal principle that the application of the principle of good faith to the taxpayer should be limited if it is rejected in violation of the principle of good faith in the tax law.

However, in the judicial relations, if the parties to the transaction voluntarily assert the invalidity of the suspension of the present state to the other party in violation of the good faith principle, such rejection of the request for cancellation registration would result in the deprivation of the legislative intent of the Act on the Utilization and Management of the National Territory, and thus, it should be accepted as pointed out in the majority opinion (see Supreme Court Decision 93Da44319, 44326, Dec. 24, 1993, etc.). However, if the taxpayer asserts that he is not a gift to the tax authority in the tax-related relationship does not go against the good faith principle, it should be accepted, which is rather acceptable to the extent that it does not go against the legislative purport of the Act on the Utilization and Management of the National Territory and the Act on the Management of the National Territory and the Act on the Management of the National Territory and the Act on the Management of the National Territory, and it would result in more favorable result than

In other words, if the majority opinion that the Supreme Court should not allow the application of the principle of good faith to the land transaction permission system under the Act on the Utilization and Management of the National Territory without regard to restitution, such transfer without compensation is not subject to the regulation of the Act on the Utilization and Management of the National Territory, such as donation, and thus, a land trader with the purpose of speculative transactions takes the registration of ownership transfer on the ground of donation, and then the transferee is subject to the revocation of the registration, claiming that the transaction is not a actual transaction or a gift when the gift tax is imposed on the transferee, and then the transferor is subject to the imposition of the transfer income tax (see Supreme Court Decision 92Nu8361 delivered on January 15, 1993). The parties to the transaction are entitled to the cancellation of the registration of ownership transfer in the above transferee's name without any defect, and even if it maintains the registration of ownership transfer as it is, the parties to the transaction should not be subject to the permission of land transaction under the Act on the Utilization and Management of the National Territory, and thus, it should not be subject to the economic speculation.

In order to prevent such evasion of the law and unreasonable consequences, when intending to have a transferee maintain the illegal legal state that was formulated by him, the gift tax shall be imposed by rejecting the allegation of taxation based on the good faith principle, etc. (in this case, the transferor is not obliged to bear the transfer income tax, and thus, the sale price shall be determined between the parties on the premise that the transferor pays the transfer income tax instead of the transfer income tax is paid). If the transferee intends to do so without bearing the gift tax, he/she shall remove the unlawful legal state that was formulated by him/herself until the closing date of arguments at the fact-finding court at the latest, and it is not necessary to make such solution consistent with the concept of justice

In addition, the violation of Article 21-3(1) of the Act on the Utilization and Management of the National Territory, rather than the violation of Article 19(2) of the Act on the Improvement of Farmland, should be applied according to the principle of equity in that the possibility of the violation is greater.

E. The majority opinion argues that it would result in damaging the principle of no taxation without law by allowing the Plaintiff, who did not acquire property through donation, to impose gift tax differently from the substance of the gift. However, the majority opinion's assertion that it would be prejudicial to the principle of no taxation without law by deeming the donation to be a constructive gift without any provision of law. However, the majority opinion's assertion that the Plaintiff's assertion should be rejected by applying the principle of no taxation without law in that it does not remove the unlawful state of law that he/she voluntarily formulated,

F. The majority opinion argues that the act of a violation of the Act on the Utilization and Management of the National Territory, such as the instant case, should be subject to criminal punishment, but there is doubt as to whether such a violation may be recognized by an investigation agency, and that it may also be presented at the risk of punishment. The original criminal act should be regulated in a uniform legal system, unless the violation of the Regulation Regulations, as long as it is not a violation of the Regulation Regulations, it should be regulated as an unfavorable legal status in the legal system, and it

G. Although an alternative acting person has committed a criminal act of illegally escaping a mandatory law, it does not eliminate any unlawful legal condition arising from such criminal act, and accepting the Plaintiff’s above assertion that the remedy was made through a trial would not only impair the original purpose of the realization of justice through a trial, but also undermine the concept of justice. Thus, the Plaintiff’s assertion should be dismissed as well as the evasion of the Farmland Reform Act, based on the good faith principle, which is based on the concept of justice.

In the same purport, the decision of the court below that rejected the plaintiff's above assertion is just, and there is no error of law by misunderstanding the legal principles as to the principle of no taxation without law, the principle of substantial taxation, and the principle of good faith, and therefore, it is reasonable to dismiss the appeal.

Chief Justice Park Jong-man (Presiding Justice) and Justice Park Jong-ho (Presiding Justice)