주식 명의신탁 증여의제의 위헌성과 개선방안

Abstract

Borrowed-name stock is stock obtained by the transaction with the name of a third party. A majority of borrowed-name transactions with regard to assets that require a registration for the transference or execution of a right, such as real estate or stocks, involves nominal trust. Unlike real estate, nominally trusted stocks are still judicially acknowledged as valid. Since nominally trusted stocks are valid, nominal trust continues to be common in transactions. The name truster of nominally trusted stocks is not required during the entire process of the transaction of nominally trusted stocks, and thus, is used as a means of law evasion and tax avoidance. Accordingly, there is a need to prevent or restrain tax avoidance caused by nominally trusted stocks, and the legal fiction of donation for nominally trusted stocks is enforced for this specific purpose. However, the academic world and men who are good at handling practical business are constantly pointing out the violation of constitution thereof. The constitutional theory does not describe a reason as to the significant difference in the degree and means of sanctions based on whether the subject of nominal trust is real estate or stocks, and merely describes that such difference is slight. This policy violates the constitution in terms of the principle of no taxation without law, the principle of taxation equality, the principle of excess prohibition, and systematic legitimacy. Thus, this study proposes the abolition of the legal fiction of donation for nominal trust. This study proposes a means of prohibiting borrowed-name stock transaction entirely by enacting the 『Act on the Registration and Transactions of Stocks under actual titleholder's name』 as a means of abolishing legal fiction of donation for nominal trust. However, the validity of borrowed-name transactions must be acknowledged for the stability of the relationship of the company law. Financial sanctions must also be accompanied to effectively prevent tax avoidance or law evasion using nominal trust. The imposition of penalty is proposed as such financial sanction. If the imposition of penalty is not agreeable as a financial sanction, it would be ideal to establish a presumption of donation policy for nominal trust as an alternative. In such case, there would be no reason for conditions for the nonexistence of the purpose to avoid taxes, and thus, should be eliminated. Even if such conditions are maintained, the scope of taxes for the purpose of tax avoidance must be limited to gift tax, if the presumption of donation for nominal trust is selected, because the presumption of donation policy for nominal trust logically requires that taxes avoided be limited to gift tax.