신주인수권취득에 관한 과세문제의 연구 - 대상판결: 대법원 2007.12.13. 선고 2005두14257 판결[법인세등부과처분취소] -

The Supreme Court Decision of December 13, 2007(Case No.: 2005 DU14257) has ruled on two points. First, it showed how to calculate the value of preemptive right. Because there is usually no market price for it, it might be very hard. The Decision said that it could be calculated on any rational way and it should consider the effect of issuing the very preemptive right. Second, it touched on the repudiation of wrongful calculation. It declared that it would not be repudiated when a contract has economic rationality. It matters what it means. The case is that a corporate sold some stocks on law price to correct wrongful situation. This essasy analyzes the Decision. Through it, I come to conclude like hereunder. First, the Decision's conclusion on how to calculate is right. There is no perfect method for it. But the method of the Decision is the most rational. I add that some expression of the Income Tax Law should be changed. Second, it has economic rationality to make a contract to correct wrongful situation. But, I think the Decision's opinion is partly wrong. A corporate(plaintiff) made a contract to correct the situation done not by itself, but by the representative director of it in this case. In the case, a corpoarte's contract has no economic rationality because a corporate has no duty to do a favor for the representative director.