상속시 주식 명의신탁 증여의제규정의 적용여부에 대한 소고

Abstract

Act on Fictitious Donations of Registered Property is most considered in tax complaints in the donation taxation field. The current “Act on Inheritance Tax and Gift Tax” came to be established through several revisions to have 981 characters under 5 paragraphs, paragraph 2 of Article 45. Paragraph 2 of Article 45 of the current Inheritance and Gift Act (began to be enforced on September 1, 2016; Act No. 13796, January 19, 2016, other act revised) is ① act on other donations, and its former “Inheritance Tax Act” was revised (paragraph 3 of Article 34) on November 30, 1952, and revised several times: ② revised on December 21, 1974 (added paragraph 2 of Article 32), ③ revised on December 31, 1981, ④ revised on December 31, 1990, ⑤ revised on December 31, 1993, ⑥ revised (added Article 43) as “Act on Inheritance Tax and Gift Tax” on December 30, 1996, ⑦ revised on December 28, 1998 (added paragraph 2 of Article 41), ⑧ revised on December 18, 2002, ⑨ revised on December 30, 2003 (transferred as paragraph 2 of Article 45), ⑩ revised on December 15, 2015. Even under the current act, which came to be established after several revisions, it is not easy to distinguish a case when applied to donation and a case not applied due to the text and structure of conditions, use of parentheses, composition of condition in paragraphs, and presentation of conditions in paragraphs. There were disputes about interpretation of stipulations of the previous acts. This study looked into the “ownership acquisition” of the “stipulation in the parenthesis” (the property (if it is a property which requires name change, the day means the day following the last day of the year which the day of ownership acquisition belongs), in subparagraph 1, paragraph 2 of Article 41 of “Act on Inheritance Tax and Gift Tax” which is the former act of the act which was established on December 18, 2002 as Act No. 6780 in order to determine whether the ownership acquisition includes “inheritance” or not, concerning the application of the fictitious donation of stocks in inheritance. This study has a great significance in that this study presents an interpretation theory regarding the issue in light of the law revisions and court decisions concerning the stipulations of fictitious donations. The methodology is mainly focused on investigation into literatures such as legal decrees, court decisions and domestic literatures as this study focuses on the stipulations of fictitious donations. Concerning the application of the stipulations of fictitious donations of stock in inheritance, the decision of Seoul High Court, 2015NU65188, sentenced on May 18, 2016, followed the application of the stipulations, but the decision of Seoul High Court, 2014NU57920, sentenced on March 24, 2015 followed the non-application of the stipulations. When considering the intent of the revision on December 18, 2002 and the revision on December 15, 2015, the decision trend which limits the application scope of the stipulations of the title trust and the necessity, etc., the non-application theory is appropriate. Not only the law interpretation and fact determination under the previous acts but also the current act still allows lot of issues about the law interpretation and fact determination. It is necessary to make rational interpretation in consideration of the intent of the concerned system and operation status when interpreting laws together with effort to establish the application scope of the stipulations of fictitious donations of registered properties at the stage of legislation.