School Foundation Public Educational Institutes (Law Firm Erasing, Attorneys Kim Jong-mun et al., Counsel for the defendant-appellant)

Head of Pyeongtaek Tax Office

May 17, 2017

Suwon District Court Decision 2014Guhap61232 Decided October 11, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of securities transaction tax of KRW 82,064,280 (including additional tax) against the Plaintiff on February 26, 2014 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

This Court's explanation is identical to the corresponding part of the judgment of the court of first instance except for dismissal or addition as follows. Thus, this Court's explanation is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

The second and second reasons "Korea Comprehensive Finance Corporation" is the "Korea Deposit Insurance Corporation of Korea".

After the third party of the third party, "the remainder after deducting the execution cost from the total amount of KRW 9,075,900,000 in the above sale price was appropriated for the repayment of the debt of the East Asian Construction Industry Co., Ltd. which the non-party jointly and severally guaranteed."

○ “4,118,940 won” in Part 5 of Part 3 is added to “(including additional taxes).”

○ The 3rd page "No. 15" of the 12th page shall be changed to "No. 17, 18".

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, since the reasons for this court's explanation are the same as that of the corresponding part of the judgment of the court of first instance (Article 15 to 410 of the 3th judgment).

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) First, we examine whether the Plaintiff constitutes a taxpayer of securities transaction tax under the former Securities Transaction Tax Act (amended by Act No. 9274, Dec. 26, 2008; hereinafter the same) at the time of sale of the instant case.

A) The main sentence of Article 1 of the former Securities Transaction Tax Act provides that “The transfer of share certificates or shares (hereinafter “share certificates, etc.”) shall be subject to the securities transaction tax.” Article 2(3) of the same Act provides that “The transfer of share certificates, etc. shall be subject to the transfer of ownership at a cost due to contractual or legal grounds.” The legislative content and intent of introducing securities transaction tax, Article 5(1) and Article 5(2) of the former Securities Transaction Tax Act provides that “the time when the transfer of share certificates, etc. becomes final and conclusive” shall be prescribed by the Presidential Decree. Article 2(1) of the former Enforcement Decree of the Securities Transaction Tax Act (amended by Presidential Decree No. 21286, Feb. 3, 2009) provides that the time when the transfer of share certificates, etc. is settled in advance (Article 2(3) of the same Act) or when the transfer of share certificates, etc. is paid at a cost, or when the share certificates, etc. are delivered at a cost or transferred at a cost under Article 218(31).2(3) of the former Act.

B) We examine the instant case: (a) as seen earlier, the proceeds from the sale of the shares of this case, which were acquired at the time of the sale of this case, were only appropriated for the repayment of the debt jointly and severally guaranteed by the Nonparty except for the execution expenses, and the Plaintiff did not receive any payment with respect to the sale of this case; and (b) the securities transaction tax is a circulation tax levied regardless of the occurrence of profit when the ownership of the shares is transferred at a cost (see Supreme Court Decision 2007Du14695, Sept. 10, 2009). However, the term “the occurrence of profit” in this case means the transfer margin, and it is not the purport that it can be taxed even if the “price as benefit” was not paid at all. In full view of the above, the Plaintiff cannot be deemed to have transferred the shares of this case as stipulated in Article 2(3) of the former Securities Transaction Tax Act at the time of the sale of this case. Therefore, it cannot be deemed that the Plaintiff, who did not receive any payment with respect to the transfer of ownership of this case.

C) Meanwhile, even if the revocation of fraudulent act by exercising the right of revocation under Article 406 of the Civil Act and restitution of deviating property is effective only in relation to the obligee, beneficiary, or subsequent purchaser, and it does not directly acquire the right (see, e.g., Supreme Court Decision 98Du11458, Dec. 8, 200). However, recognizing the relative effect as above as above is for adjusting the interests of the obligee, beneficiary, and third party (see, e.g., Supreme Court Decisions 2004Da49532, Nov. 10, 2005; 2008Da7109, Jun. 11, 2009; 2008Da7109, Jun. 11, 2009). However, the right of revocation is still effective for returning property beyond the original one’s ownership of an obligor’s property subject to restitution and compulsory execution by the Supreme Court Decision 2008Da48275, Apr. 27, 2007.

D) In addition, the securities transaction tax is a kind of distribution tax imposing taxes by gathering the fact that the ownership of stock certificates is transferred at a cost, based on the fact that the ownership is transferred at a cost. The sale of this case was made as a result of the Nonparty’s creditor’s revocation of fraudulent act and the Nonparty’s claim for restitution, which was filed by the Nonparty’s creditor, and was made as a result of the Nonparty’s compulsory execution against the stocks that were restored to their original state, and thus, it was made according to the circumstances that the Plaintiff could not control regardless of the Plaintiff’s intent. Therefore, imposing the securities transaction tax on the Plaintiff for

2) Ultimately, the instant disposition, based on the premise that the Plaintiff is the transferor of share certificates, etc. under the former Securities Transaction Tax Act, should be revoked on the premise that the Plaintiff is the transferor of share certificates, etc.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is justified, and the judgment of the court of first instance differs from this conclusion, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and the disposition of this case is revoked, and it is so decided as per Disposition.

(attached Form omitted)

Judges Cho Jong-tae (Presiding Judge)