Whether it becomes a director of a non-medical person who has no special relationship with the business of a medical corporation, along with the contributing medical person, becomes a director of the corporation as well as the public interest corporation (negative)

According to the purport of the proviso of Article 3-2 (1) of the Enforcement Decree of the Inheritance Tax Act, if a non-medical person who is specially related to the relevant public service is a director, it cannot be viewed as a ground for denying the nature of the public service corporation.

Article 8-2 (1) 1 and Article 34-5 of the Inheritance Tax Act, Article 3-2 (1) 1 of the Enforcement Decree of the Inheritance Tax Act

Medical Corporations, the Medical Corporations, the Korea Medical Corporation

Head of Ulsan District Office

Daegu High Court Decision 83Gu257 delivered on April 4, 1985

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the plaintiff corporation was a medical corporation under the Medical Service Act after obtaining permission for establishment on April 2, 1982 and completing the registration of incorporation on May 11 of the same year. The court below determined that the above contributed property under the Medical Service Act to the non-party 1, non-party 2, non-party 3, non-party 4, and non-medical personnel under the Medical Service Act, and that the above non-party 6 (the deceased on October 25, 1983), non-party 7, and non-party 8, who were non-medical personnel, was appointed as a director of the plaintiff corporation. According to the above facts, the court below determined that the above contributed property was legitimate without being subject to the gift tax under Articles 34-5 and 8-2 (1) 1 of the Inheritance Tax Act, which was excluded from the gift tax.

2. Under Article 8-2 (1) 1 of the Inheritance Tax Act, which shall apply mutatis mutandis to gift tax pursuant to Article 34-5 of the same Act, provides that "property contributed to the religious business, charity business, academic business or other public services operated under the conditions as prescribed by the Presidential Decree shall not be included in the taxable value." Under the delegation, property contributed to public services provided for in each subparagraph of Article 3-2 (2) of the Enforcement Decree of the same Act, which lists the kinds of public services under the delegation, shall not be imposed politically. However, if it is one of the institutional devices to prevent any person from abusing property contributed prior to public services as a means of tax evasion or increase of wealth, which shall apply mutatis mutandis to gift tax pursuant to Article 42 (1) of the Enforcement Decree of the same Act, to a medical corporation which has no special relationship with the relevant public services, it shall be excluded from the medical corporation which has no such special relationship under the proviso to Article 3-2 (1) 1 of the same Act, which shall be deemed as a director of the medical corporation to be a public interest, regardless of such special nature of the public services."

However, if a non-medical person who has no special relation with the pertinent public works is a director with a contributor, it is problematic how to interpret the above proviso as to the expression "only the contributor". However, the above provision does not apply to a person who has no special relation with the pertinent public works as a director. Therefore, it is difficult to see that a medical person as a director is a ground for denial of public services in accordance with the above proviso, which provides for special cases allowing a medical person to contribute to a medical corporation and become a director. Therefore, if a non-medical person who has no special relation with the pertinent public works becomes a director with a non-medical person as a contributor, it shall be interpreted as a public service corporation.

3. In the case of this case, the medical personnel, the above non-medical personnel, the non-medical personnel, and the non-medical personnel, established the plaintiff corporation by jointly contributing the property with the above non-medical personnel, and the non-medical personnel, and among which the non-medical personnel, the non-medical personnel, who was the above non-medical personnel, was the director of the plaintiff corporation with the above non-legal personnel, and the non-legal personnel, and the non-legal personnel, as a director of the plaintiff corporation. According to the above legal principles, the above non-legal personnel, who was the non-legal personnel, become the director of the non-legal person, cannot be a ground for denying the public legal personality of the plaintiff corporation. Accordingly, whether the plaintiff corporation is a public legal person or not, the above non-legal person shall be determined by whether the non-legal person 6, 7, and 8 is a person with a special relation with the plaintiff corporation. Thus, the court below's decision that the property contributed to the plaintiff corporation does not constitute a public-service corporation, and therefore, did not affect the conclusion of the appeal.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon In-bok (Presiding Justice)