Whether a representative director, who is a substantial manager of a corporation, constitutes an outflow of assets as an expenditure for the corporation's funds (affirmative in principle), and the method of determining special circumstances that cannot be seen as an outflow of assets and the burden of proof (=the corporation)

Unless there are special circumstances, the act of the representative director, etc., who is the actual manager of a corporation, uses the corporation's funds on the premise of recovery at the beginning, and thus, it constitutes an outflow from the company as an expenditure itself. As to special circumstances that cannot be viewed as not premised on recovery from the utilization time, it shall be determined individually and specifically by taking into account all the circumstances, including where the intent of the representative director, etc. is identical to the intent of the corporation or where it is difficult to see that the corporate economic interest with the representative director, etc. is in fact identical through the actual status of the corporation, such as the representative director, etc., the subject of embezzlement, the degree of control over the corporation, the circumstances leading to embezzlement, and measures taken by the corporation after embezzlement

Article 67 of the Corporate Tax Act, Article 106(1)1 and 2 of the Enforcement Decree of the Corporate Tax Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Schan Scene Scene Co., Ltd., the receiver of Scene Kcro Anaks, the largest diversity of the lawsuit (Law Firm Han & Lee, et al., Counsel for the plaintiff-appellant)

head of Sung Dong Tax Office

Seoul High Court Decision 2007Nu15959 decided Oct. 12, 2007

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Unless there are special circumstances, the act of the representative director, etc., who is the actual manager of a corporation uses the corporation's funds on the premise of the early recovery, and thus, it is not an act of using the corporation's funds on the premise of the early recovery, and thus, it constitutes an outflow from the company as an expenditure itself (see, e.g., Supreme Court Decisions 98Du7350, Dec. 24, 199; 9Du3324, Sept. 14, 2001). As to special circumstances that cannot be deemed as not premised on the recovery from the useful time, the actual status of the corporation within the representative director, etc., who is the principal manager of the embezzlement, and the degree of control over the corporation, the circumstances leading to the embezzlement, and whether it is difficult to deem the representative director's intent identical to the corporation's intent or that the corporate economic interests are in fact identical with the representative director, etc. after the embezzlement should be determined individually and individually, by taking into account all the circumstances, such special circumstances

The court below acknowledged the fact that the non-party 1 acquired shares of the company 5,450,320 shares of the company (54.8% of the issued shares) from the non-party 2, who was a major shareholder of the non-party 1, Sweak Sweak Sweak Co., Ltd. (hereinafter "the non-party company"), and embezzled the above shares acquisition price of 8.4 billion won by withdrawing the shares from the assets of the non-party company and paying it. The non-party 3 acquired shares of the non-party company 1 and the management right of the non-party 2,794,930 shares of the non-party company (23.48% of the issued shares) and then taken over the non-party company as the representative director of the non-party company, and then embezzled the shares of the non-party company 21,387,418,000 won by arbitrarily issuing the shares of the non-party company's name, and determined that the non-party 1 and the non-party company's employee were legitimate.

However, according to the facts and records duly established by the court below, even if the non-party 1 and the non-party 3 were to be the major shareholder, representative director, or actual manager holding 5% of the shares issued by the non-party 1 in sequential order, the non-party 1 and the non-party 3 were to be aware of the above non-party 1's non-party 1's non-party company's non-party 2's non-party 3's non-party 1's non-party 6's non-party 1's non-party 6's non-party 1's non-party 3's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 3's non-party 2's non-party 3's non-party 2's non-party 3'.

Nevertheless, in this case, the court below held that the non-party 1 and the non-party 3's embezzlement of the non-party 1 and the non-party 3 did not constitute the representative director or the actual manager of the non-party company, and that the non-party company's assets belonging to the non-party 1 and the non-party 3 were not based on the initial collection premise. Thus, the court below's determination that the non-party company's assets were legitimate as a bonus regardless of whether there was ratification or implied approval of the non-party company. It erred in the misapprehension of the legal principles as to the outflow from the company

Therefore, without further review, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)