[Plaintiff-Appellee] Plaintiff 1 and 1 other (Law Firm Chungcheong, Attorney Cho Jong-chul et al., Counsel for plaintiff-appellee)

Head of Suwon Tax Office

June 24, 2011

Suwon District Court Decision 2009Guhap14096 Decided July 15, 2010

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposing KRW 14,041,937,00 on the Plaintiff on September 3, 2008 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On October 17, 2002, the Plaintiff received a contribution of KRW 310 million from Nonparty 1, etc., and obtained the establishment permission (the name was changed to “○○○○○ Scholarship Foundation,” but the name was changed to the “Gu Institute Foundation,” on April 4, 2005). On November 5, 2005, the Plaintiff is a bona fide public-service corporation not related to a corporation belonging to an enterprise group subject to limitations on mutual investment and a corporation belonging to an incorporated foundation, the establishment registration of which was completed.

B. Nonparty 1 owned 84,00 shares (70 percent of the total number of shares issued) out of 120,00 shares of the non-party corporation Suwon Intersection (hereinafter "the domestic corporation of this case"), and his non-party 2, 600 shares remaining 30,000 shares (30 percent of the total number of shares issued), respectively, on February 20, 2003, Non-party 1 and Non-party 2 contributed 72,000 shares (60 percent of the total number of shares issued) and 36,000 shares (hereinafter "non-party 1's shares") to each of the plaintiff (the total amount of shares of this case shall be 72,00 shares and 36,000 shares donated by Non-party 2 to the public corporation, etc. of this case). According to the change in the Plaintiff's contribution, the total amount of shares of this case shall be 300,000 won as 381 billion won as of April 28, 2003

C. Accordingly, on April 28, 2003, the Defendant rendered the instant disposition imposing additional tax (including additional tax of KRW 4,01,982,00) on the Plaintiff on September 3, 2008, on the ground that the Plaintiff’s contribution to the instant shares by Nonparty 1, etc. was for the efficient implementation of the Plaintiff’s public interest project, but the public interest corporation provided for in the proviso of Article 48(1) of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2007; hereinafter “the Inheritance and Gift Tax Act”) was contributed in excess of 5/100 of the total number of outstanding voting stocks issued by a domestic corporation.

D. On November 11, 2008, the Plaintiff filed a request for review with the Board of Audit and Inspection for the revocation of the instant disposition, but was dismissed on September 17, 2009.

[Grounds for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 14, 15, 16, Eul evidence Nos. 1 through 3 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary argument

The non-party 1 merely contributed to the plaintiff at the time of the establishment of the plaintiff and cannot be deemed to have established the plaintiff by failing to establish the "articles of incorporation and name and seal". Thus, the plaintiff does not constitute the "non-profit corporation that has established the company by contributing property" under Articles 13 (4) 1 and 13 (6) 3 and 19 (2) 4 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 18177 of Dec. 30, 203; hereinafter "Enforcement Decree of the Inheritance Tax and Gift Tax Act"). Therefore, since the domestic corporation of this case is not a domestic corporation under Article 13 (4) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, since the non-party 1 does not have a special relation with the domestic corporation of this case, all of the value of the shares shall not be included in the taxable value of the gift tax of this case pursuant to the proviso of Article 48 (1) and the proviso of Article 16 (2) other than each subparagraph (hereinafter "Article 16 (2).

Nevertheless, the disposition of this case by the defendant is unlawful, considering that the plaintiff's contribution was made in excess of 5/100 of the total number of outstanding voting stocks of a domestic corporation provided for in the proviso of Article 48 (1) of the Inheritance and Gift Tax Act.

2) Preliminary assertion

A) Although the Inheritance and Gift Tax Act does not impose gift tax on the property contributed to a public-service corporation in principle, the purport of recognizing certain exceptions in cases where the property contributed is shares is to prevent the acquisition of the parent company’s management rights through a public-service corporation established separately by a re-invested company and from evading gift tax. However, Nonparty 1’s contribution of the instant shares to the Plaintiff is merely for the efficient implementation of public-service projects, such as scholarship projects, and does not intend to obtain control over the instant domestic corporation through the Plaintiff or to avoid gift tax. Accordingly, the instant disposition was invalidated because it is irrelevant to the concentration of economic power and succession to the Act on the Promotion of Management Rights, which is prohibited by the Inheritance and Gift Tax Act.

B) The instant shares contributed by Nonparty 1 to the Plaintiff are the sole source of funds for the Plaintiff’s public activities, such as the Plaintiff’s scholarship project (as of April 28, 2003), and the instant disposition did not meet the adequacy of the method, the minimum of damage, and the balance of legal interests, which are so-called “scopic or confiscated” that making it difficult to maintain the Plaintiff’s existence by having lost the effect that the State would bear 78% of the shares of this case.

C) Ultimately, the instant disposition is unconstitutional disposition that has lost the legitimacy, method, appropriateness of the purpose and balance of the legal interest. Therefore, the instant disposition is unlawful under Article 107(2) of the Constitution or by means of the constitutional interpretation of the legal provision.

B. Relevant statutes

It is as shown in the attached Form.

C. Judgment on the main argument

1) Time to determine whether a person is a specially related person

A) On the basis of the point of time immediately before the contribution of the shares to the court of first instance, the Defendant asserts that the domestic corporation of this case has a special relationship with Nonparty 1 and Nonparty 1 before the contribution of the shares to Nonparty 1, as stated in each subparagraph of Article 13(4)1 of the Enforcement Decree of the Inheritance and Gift Act, and Article 13(6) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968 of Dec. 31, 198), and Article 20 subparag. 1 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15968 of Dec. 31, 198), since Nonparty 2 had already been the largest shareholder of the domestic corporation at the time of contribution of the shares to the court of first instance (the contributor and Nonparty 2 held 100% and only the shares of the contributor were considered).

B) However, for the following reasons, it should not be determined whether a person is a person with a special relationship as stipulated in each subparagraph of Article 14(4)1 of the Enforcement Decree of the Inheritance and Gift Act as of the time immediately before stock contribution was made, and it should be determined whether a person has a special relationship with a person with a person with a stock contribution according to the result of contribution to stocks.

(1) There is no provision regarding the time when determining whether a person has a special relationship with a contributor under Article 14(4)1 of the Enforcement Decree of the Inheritance and Gift Act. In addition, inasmuch as there is no ground for the court of first instance to regard “the time of contribution” as “the time of contribution” as indicated by the court of first instance, the above provision should be reasonably interpreted in light of the purpose of delegation under Article 14 of

(2) Article 14(4) of the Enforcement Decree of the Inheritance and Gift Tax Act provides that when a domestic corporation contributes its stocks to a public-service corporation, the contributor shall include in the taxable value the stocks contributed to holding company in question to prevent concentration of economic power or habition by making the relevant public-service corporation through the donation of stocks. However, in exceptional cases where there is no such risk, the provisions on the authority of donation under the Inheritance and Gift Tax Act for the purpose of not including the contributed stocks in the taxable value so as to specify cases where there is no risk of concentration of economic power or taxation by examining the purport of the provisions on the authority of donation under the Inheritance and Gift Tax Act for not including them in the taxable value. However, it is reasonable to determine

(3) If the court of first instance determines shares as of the time immediately before the contribution of shares, it would result in the close down of the Inheritance and Gift Tax Act, in itself, that a single shareholder contributes his shares to a public-service corporation for the purpose of public interest, regardless of economic concentration and taxation.

2) Whether the non-party 1 can be deemed as a non-profit corporation established with the contribution of property

Next, under the premise that it should be determined based on the result of contribution of shares to the person who has a special relationship under each subparagraph of Article 14(4)1 of the Enforcement Decree of the Inheritance and Gift Act with the contributor under each subparagraph of paragraph (6) of the same Article, to be recognized as a special relationship under Article 13(4)1 of the Enforcement Decree of the Inheritance and Gift Act by the Plaintiff and the non-party 1, the plaintiff should be the "non-profit corporation established by the shareholder with the contribution of property" under Article 19(2)4 of the Enforcement Decree of the Inheritance and Gift Act, and this shall be examined.

A) Facts of recognition

(1) According to the Plaintiff’s “performance of the acquisition of donations” statement that Nonparty 1 donated KRW 310,000,000,000 as expenses for the establishment of the Plaintiff on August 12, 2002 and KRW 300,000,000 as expenses for the establishment of the Plaintiff on August 20, 202.

(2) According to the Plaintiff’s application for permission to establish the Plaintiff’s foundation submitted to the Suwon District Office of Education of Gyeonggi-do on September 2002 under the name of Nonparty 3, the Plaintiff’s basic property is indicated as KRW 300,000,000 for the Plaintiff’s general property, and KRW 10,000 for the general property, and according to the purport of establishment and the minutes of the promoters’ establishment attached to the above application (the opening date: August 20, 2002), the Plaintiff stated that “it is intended to establish and promote the Scholarship Foundation to meet the purport that the representative director of Suwon-do, Inc. 1, Ltd. contributed KRW 310,00,00 for the capital contribution attached to the above application.” In addition, the property contribution certificate in the name of Nonparty 1, attached to the above application, stating that “one person’s own property [310,000,000 for cash (deposit)] is a property corporation to be incorporated without compensation.”

(3) The attached list of the original fundamental property established on October 17, 2002, “list of fundamental property established” and “list of present fundamental property” are indicated as KRW 300,000 in the assessed value of fundamental property.

(4) 310,00,000 won, which is the sum of the Plaintiff’s ordinary property and fundamental property, was deposited into the Plaintiff’s account on November 7, 2002. The said KRW 310,000,000 deposited in the account of the Agricultural Cooperative under the name of Nonparty 1 between July 31, 2002 and September 24, 2002, deposited in the name of Nonparty 1 in the name of the Agricultural Cooperative during the period from July 31, 2002 to September 24, 2002, KRW 17,535,000,000 deposited in the name of the Suwon Educational Association, the KRW 60,000 deposited in the name of Nonparty 5, the representative of the Agricultural Cooperative’s meeting, and KRW 50,000,000,000 deposited in the name of Nonparty 1.

(5) At the time of the establishment of the Plaintiff, the number of persons related to the Aju University (five professors, two faculty members) is most among the total eight promoters and eight executive officers, and Nonparty 1 was not included in the promoters or executive officers.

[Ground of recognition] Evidence Nos. 1, 5-1, 2, 6, 7, 14, 15, 16-1, 16-2, and the purport of the whole pleadings

B) Specific determination in the instant case

(1) Under the principle of no taxation without law, the interpretation of tax laws shall be interpreted in accordance with the text of the law unless there are special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. However, where it is necessary to clarify the meaning through the interpretation between the laws and regulations, it shall be permitted to make a combined interpretation in consideration of the purpose of legislation and purpose within the scope that does not undermine the legal stability and predictability pursued by the principle of no taxation without law (see Supreme Court Decision 2007Du4438, Feb. 15, 2008, etc.).

Based on the above legal principles and reasoning, the "non-profit corporation established by a shareholder with the contribution of property" under Article 19 (2) 4 of the Enforcement Decree of the Inheritance and Gift Act refers to a non-profit corporation that has reached the establishment as a result of the shareholder's contribution of property, and it does not mean that the shareholder is required to contribute property and to perform the act of establishment (the preparation of the articles of incorporation).

① Article 42(2)1 of the Enforcement Decree of the Inheritance and Gift Tax Act provides that “public-service corporations, etc. established by the State or a local government with contributions to property” shall be “public-service corporations, etc. established by the State or a local government with contributions to property,” and Article 42(2)2 of the same Act provides that “public-service corporations, etc. established by a public institution pursuant to Article 4(1)3 of the Act on the Management of Public Institutions with contributions to property” shall not be construed to mean that the State, a local government, a public-service corporation, a public institution, etc. shall be the subject of contributions to property but shall not be construed to require the establishment of a non-profit corporation. Likewise, the term “non-profit corporation established by a shareholder with contributions to property” under Article 19(2)4 of the Enforcement Decree of the Inheritance and Gift Tax Act with the same sentence shall mean a non-profit corporation with contributions to

(2) If a shareholder construed that “non-profit corporation established by a shareholder through contribution to property” means a non-profit corporation that has performed both property contribution and establishment, the legislative intent of the Inheritance and Gift Tax Act, which would result in the failure of a shareholder to pay gift tax if a person who holds shares contributes only shares while establishing a public-service corporation and allows a third party to formally prepare the articles of incorporation and sign and seal included in the concept of establishment act under the Civil Act, resulting in the failure to pay gift tax, thereby succeeding to the management right of the corporation through a public-service corporation and preventing the evasion of gift tax.

(3) In addition, the term “establishment of an incorporated foundation” under Article 40 of the Civil Act refers to the contribution of property and the preparation of articles of incorporation, and the above provision on “non-profit corporation established by a shareholder with property contribution” does not necessarily mean that the concept of the establishment was borrowed from the concept of the establishment under the Civil Act.

(2) Ultimately, when comprehensively considering the source, timing, scale, and process of the establishment of the Plaintiff’s establishment fund, the Plaintiff’s contribution was made by Nonparty 1, and thereby, constitutes a public-service corporation. Therefore, the Plaintiff constitutes “a non-profit corporation established by a shareholder by contributing property” under Article 19(2)4 of the Enforcement Decree of the Inheritance and Gift Act, and thus, is a person having a special relationship under Article 13(4)1 of the Enforcement Decree of the Inheritance and Gift Act with Nonparty 1 and Article 13(4)1 of the Inheritance and Gift Act.

3) Sub-decisions

The non-party 1, who is a contributor to the Plaintiff, is a shareholder of the instant domestic corporation with 10% of the shares of the instant domestic corporation. The Plaintiff is a person having a special relationship with the Plaintiff by holding 90% of shares due to the non-party 1’s contribution to the instant shares, and the shares owned by them are all the shares of the instant domestic corporation. Thus, the instant domestic corporation does not constitute “a domestic corporation that has no special relationship with the contributor of the relevant domestic corporation.”

Therefore, Nonparty 1’s contribution of the instant shares to the Plaintiff does not fall under the provision of the proviso of Article 48(1) of the Inheritance and Gift Tax Act, and the Plaintiff’s assertion on a different premise is without merit.

D. Determination on the conjunctive assertion

1) The so-called “unconstitutional legal interpretation on the constitutional disposition”

The purpose of the system to include the value of a domestic corporation’s stocks in the taxable value of donated property is to prevent economic power by holding the relevant public interest legal interests or by blocking economic power without any gift tax. However, a public interest corporation’s contribution to the stocks of a domestic corporation is irrelevant to economic concentration or economic influence, but it is uniformly deemed that gift tax is levied if it falls under the formal requirements prescribed by the relevant provisions of the Inheritance and Gift Tax Act and the Enforcement Decree of the Inheritance and Gift Tax Act, and the exception is not recognized, it may be extremely contrary to the purport of Article 37(2) of the Constitution, Article 119(2) of the Constitution, and the legislative purpose of the Enforcement Decree of the Inheritance and Gift Tax Act and the Inheritance and Gift Tax Act.

In such a case, it is a matter of whether gift tax may not be imposed exceptionally if it is proved that the public interest corporation liable to pay gift tax is unrelated to the concentration of economic power or economic influence when interpreting the non-taxation clause in the taxable value of gift tax, taking into account whether the contribution of stocks of a domestic corporation to a public interest corporation is related to the concentration of economic power or economic influence (Article 13(4) of the Enforcement Decree of the Gift Tax Act, and also, even if it is provided that there is a special relationship between a person who contributed stocks of a domestic corporation to a public interest corporation and the relevant domestic corporation, if it is proved that the contribution of stocks of the public interest corporation is irrelevant to the concentration of economic power or economic influence (Article 13(1) of the Enforcement Decree of the Income Tax Act). In such an exceptional case, the court of first instance determined that the pertinent non-party 1 was unlawful by taking into account the following factors: (a) the motive, circumstance, process, the process, if the relevant public interest corporation was newly established, the details of its operation until the contribution was made; and (b) the details of the operation of the domestic corporation after the contribution.

2) Whether the instant disposition can be deemed unlawful on the grounds of constitutional interpretation of the law and Article 107(2) of the Constitution

A) General theory on the interpretation of tax statutes

Unlike the legislative body newly enacting the law, the court, which is a state agency, applying the law enacted in king, can not arbitrarily go beyond the nature and principles of statutory interpretation in order to resolve exceptional cases where special circumstances exist in a concrete and reasonable manner on the grounds of conceptual reasons such as abstract justice and legislative purpose, except for the reasons prescribed by the Constitution and the law.

The issue of what is concrete and reasonable resolution is, if a single and exceptional interpretation is permitted beyond the essence and principle of the interpretation of the law in question, and beyond the specific validity of the case in question, the court at any time, and if the court does not know of the legal principles as to the interpretation, the citizen who is not aware of the legal principles as to the interpretation, is not in doubt that the judge should proceed to a arbitrary trial rather than a trial by law, and this will cause serious harm to the trust of the people in the court's trial, and it will cause serious damage to the legal stability by making it impossible to resolve all disputes without bringing them to the court (see Supreme Court Decision 2006Da81035, Apr. 23, 2009).

In particular, Article 38 of the Constitution provides that "All citizens shall have the duty to pay taxes under the conditions as prescribed by Act." Article 59 of the Constitution provides that "types and rates of taxes shall be determined by Act." This principle of no taxation without the law adopts the principle of no taxation without the law. Such principle of no taxation without the law means that taxation requirements, etc. shall be prescribed by the law enacted by the National Assembly, which is a representative body of the people, and strict interpretation and application in the implementation of the law, and that expansion or analogical application of administrative convenience shall not be allowed. Therefore, without the delegation of the law, the provision of matters concerning taxation requirements, etc. by administrative legislation such as orders or rules, or the provision of interpretation and interpretation provisions without the permission of the law violates the principle of no taxation without the law (see Supreme Court en banc Decision 2006Du8648, May 17, 2007,

In addition, in principle, an interpretation of the law or a provision of the law should be interpreted to the extent possible, but when interpreting the provision of the law in a constitutional manner, there is a limit according to the legislative purpose that the meaning of the speech should be within the extent that does not completely different meaning from that of the speech where the phrase of the provision of the law is separated, and that the legislative purpose of the law should not be interpreted in vain by the legislative authority to pursue by enacting the law. This is because the constitutional interpretation beyond such a scope is the legislative action in a substantial sense, thereby infringing the legislative power of the legislative authority (see Constitutional Court Decision 88Hun-Ga5, 89Hun-Ga44, July 14, 1989).

B) Legislative details and nature of a clause not to be included in the taxable value of donated property

(1) A non-governmental organization or an individual has prepared a policy to encourage tax exemption for property contributed to public-service projects under certain conditions for the purpose of actively participating in the public-service projects. Such tax benefits have been abused, thereby concentrating economic power or booming by contributing shares of domestic corporations. To cope with this, Article 48(1) of the Inheritance Tax and Gift Tax Act amended by Act No. 5193, Dec. 30, 1996 provides that, in cases where the shares of a domestic corporation contributed by a public-service corporation and the shares of the relevant public-service corporation exceed 5/100 of the total number of outstanding shares of the relevant domestic corporation, gift tax shall be imposed on the shares of the domestic corporation in excess of those calculated by the method prescribed by the Presidential Decree. However, according to this provision, even if a domestic corporation’s shares are owned by a domestic corporation, taxation policy purposes which were achieved by imposing gift tax to a public-service corporation may not be contributed to at least 15/100 of the total number of outstanding shares of the domestic corporation and its outstanding shares.

(2) As a matter of principle, the transfer of assets to a public-service corporation is subject to gift tax, but it is exempt from tax policy considering the public-service role. However, in order to prevent the occurrence of the phenomenon of transferring the stocks of a company to a public-service corporation without compensation in violation of the tax policy and by making it a holding company of a public-service corporation and bypassing inheritance and donation through a public-service corporation, the legislation was made to withdraw non-taxation of inheritance tax and gift tax if the number of stocks issued by the relevant domestic corporation exceeds 5/100 of the total number of stocks issued by the relevant domestic corporation, and finally, in the event that a faithful public-service corporation that does not belong to a large enterprise group acquires and holds stocks of a domestic corporation that does not have any special relationship with the contributor, the restriction on stockholding was mitigated so that gift tax should not be levied on the acquisition

In other words, if a public-service corporation acquires more than 5% of the stocks of a domestic corporation, it is subject to taxation, but in exceptional cases where a faithful public-service corporation not belonging to a large enterprise group is stocks of a domestic corporation that is not related to the contributor, it is deemed that the consideration of legislative policy giving preferential tax treatment or preferential tax treatment.

C) Specific determination in the instant case

(1) Comprehensively taking account of the overall purport of Gap evidence Nos. 9 through 13 and 18, and the testimony and arguments by non-party 4, it is acknowledged that non-party 1 was established for the purpose of public interest, such as the scholarship program, and the plaintiff was faithfully carried out the public interest project. It is acknowledged that the non-party 1 only intended to contribute the shares of this case to the Asian University and to use them for the scholarship program, and it does not seem that the non-party 1 held shares of 10% and became a shareholder of the domestic corporation of this case was only held at the recommendation of the Asian University, and it is difficult to view that the non-party 1 was holding the shares of this case as a shareholder of the domestic corporation of this case.

On the other hand, according to the statement in Gap evidence No. 1, the non-party 1 was appointed as the president of the plaintiff on December 15, 2005 and registered on January 4, 2006 (except the non-party 1, the non-party 1 shall not have the power of representation), and the non-party 1 was approved to be reappointed of an officer on September 5, 2008 (the term of office from October 19 to October 18, 2012).

According to the above facts of recognition, the non-party 1, the contributor of the shares of this case, can be reappointed by the president and can exercise exclusive power of representation, and there is a face to recognize the circumstances in which the plaintiff is in a position of influence.

(2) As seen earlier, the legislators, taking into account the policy needs for the contribution of shares of a public-service corporation and the practical necessity to prevent the harm of bypassing economic power succession that may arise from the contribution of shares to a public-service corporation, the legislators finally set the limitation on the legislative policy on the stockholding of a public-service corporation, excluding the imposition of gift tax, even in cases where a faithful public-service corporation not belonging to a large enterprise group owns not less than 5/100 of the total number of shares issued by a domestic corporation,

Therefore, the non-taxation clause in the taxable value of donated property is introduced within the legislative discretion of the legislator, and it cannot be deemed that there is room for violation of the Constitution in itself. Moreover, as long as the above provision is an exception to taxation in cases of stocks of a domestic corporation that is not in a special relationship with the stock contributor by reflecting the policy necessity for the contribution of stocks of a public-service corporation, the determination of whether it falls under the above provision ought to be made regardless of whether the contributor of stocks and the stock contributor have practical control over

In light of the circumstances acknowledged earlier, it is irrelevant to Nonparty 1’s economic concentration and succession to the Commercialization Act that prohibits the contribution of the instant shares by Nonparty 1 to the Plaintiff. Moreover, even if the instant disposition results in an unreasonable result that makes it difficult for the Plaintiff to continue to exist, it shall not be deemed that the Defendant issued the instant disposition with respect to the Plaintiff’s contribution of the instant shares by Nonparty 1 by applying the provision on non-taxation in the taxable value, without considering whether the share contributor has practical control over domestic corporations or whether the Plaintiff’s contribution of the instant shares was carried out for public interest purposes.

However, since the contribution of Nonparty 1 to the Plaintiff does not intend to succeed to economic power, and it does not go against the legislative intent of introducing the non-inclusion clause in the taxable value, re-establishs the limit prescribed by the law once by interpretation of the law, on the ground that it does not go against the legislative purpose of introducing the non-taxation clause in the taxable value, it cannot be deemed that it goes beyond the scope of interpretation of the law concerning the non-taxation clause in the taxable value of gift tax (it cannot be concluded that there is no risk of succession to economic power in light of the circumstances under which Nonparty 1, the contributor of the instant shares, is reappointed the president and can exercise exclusive power of representation

(3) Article 107(2) of the Constitution provides that “Where an order, rule or disposition is based on the premise of a trial whether it violates the Constitution or a law, the Supreme Court shall have the power to finally examine it.” This provision means that where the Constitution or a law violates the Constitution, the court has the power to review and has the duty to examine it.

However, as seen earlier, it is difficult to see that the instant disposition was carried out in violation of the Constitution, and rather, it can be deemed that it was carried out based on the constitutional law.

In addition, even though the contribution of this case to the Plaintiff by Nonparty 1 was irrelevant to the concentration of economic power and succession to management rights, which is prohibited under the Inheritance and Gift Act, it is difficult to view that there is a very unreasonable aspect to make it difficult for the Plaintiff to continue to continue to exist, even if the result of the disposition of this case is likely to result in the State’s 78% increase of shares due to the disposition of this case, even though it is irrelevant to the concentration of economic power and succession to management rights.

In addition, even though it is unconstitutional that a tax disposition that lawfully applied a constitutional tax law leads to a unconstitutional result such as going against equity if it is specific, it cannot be said that the court has the authority to correct it pursuant to Article 107(2) of the Constitution, unless there is a specific relief system through legislation, such as Articles 163 and 227 of the German Framework Act on National Taxes.

D) Sub-committee

The instant disposition is a legitimate disposition taken based on the main sentence and proviso of Article 48(1) of the Inheritance and Gift Tax Act, the proviso of Article 16(2) other than each subparagraph, and Article 13(4)1 and (6)3 of the Enforcement Decree of the Inheritance and Gift Tax Act, and Article 19(2)4 of the Enforcement Decree of the Inheritance and Gift Tax Act. In contrast, no circumstance exists to deem the instant disposition as a disposition contrary to the Constitution or Acts. In order to prevent unreasonable consequences arising from the instant disposition, the instant disposition is unlawful on the ground that it does not constitute an additional requirement after setting the legislative purpose of the provision not to be included in the taxable value in the taxable value, taking into account the legislative purpose of the provision not to be included in the taxable value, and setting the additional requirements that do not constitute an unlawful disposition, since it

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and it is so decided as per Disposition

[Attachment]

Judges Kim Jae-sik (Presiding Judge)