주식등변동상황명세서로 명의개서 여부를판정하는 규정의 소급적용 여부에 관한 연구―대법원 2018.6.28. 선고 2018두36172 판결을 중심으로―

The Inheritance Tax and Gift Tax Act as amended on December 30, 2003 by Law No. 7010 newly implemented Article 45-2(3) which determines title transfer on the basis of whether title is registered on the share change circumstances registry. Article 41-2 of the Inheritance Tax and Gift Tax Act, which applied prior to the implementation of the revised Inheritance Tax and Gift Tax Act until December 31, 2003, only applied with respect to shares of companies to which share registries were prepared. Accordingly, the regulations recognizing title trusts as deemed gifts were not applicable even in tax avoidance situations where shares of a company without share registries were acquired in the name of a third party. Article 45-2 of the Inheritance Tax and Gift Tax Act was newly implemented in order to prevent tax avoidance activities through name trusts of shares in companies without share registries. However, the revised Inheritance Tax and Gift Tax Act merely stipulates in its subordinate rules that the implementation date of the revised Inheritance Tax and Gift Tax Act is January 1, 2004 and provides only that the provision applies to the period to which share change circumstances registries are submitted following the implementation of the revised Inheritance Tax and Gift Tax Act. There is no regulation in place to address whether the new legislation applies to transactions that occurred prior to the date of implementation. In such respects, the question of whether the revised Article 45-2(3) of the Inheritance Tax and Gift Tax Act may be applied retroactively to transactions that occurred prior to its implementation became an issue and the decision under review in this paper made a determination on this issue. The decision held that the revised Article 45-2(3) of the Inheritance Tax and Gift Tax Act may be applied retroactively to transactions that occurred prior to its implementation date of January 1, 2004. However, such decisions of this nature are problematic as they are contrary to the principle of no taxation without law and application of the deemed gift provisions, retroactive legislation principles, and recent trends in case law imposing strict restrictions in the application of deemed gift regulations to name trusts. First, the Inheritance Tax and Gift Tax Act clearly stipulates that newly enacted or revised deemed gift provisions apply both in subject and timing to transactions that occur after the new enactment or revision. It is a legislative method consistent with the principle of no taxation without law which guarantees the legal stability and predictability of the citizens. However, there are no such provisions with respect to the revised Article 45-2(3) of the Inheritance Tax and Gift Tax Act. If so, Article 41-2 of the Inheritance Tax and Gift Tax Act, applicable at the time of the transaction in this case prior to the amendment, should have applied in accordance with the principle of no taxation without law. Despite this, the decision at issue held that the revised law applies in violation of the principle of no taxation without law. Second, pursuant to the principles of retroactive legislation, Article 45-2(3) of the Inheritance Tax and Gift Tax Act cannot be applied to transactions that were concluded prior to the amendment. Article 45-2(3) of the revised Inheritance Tax and Gift Tax Act should be interpreted to apply to transactions made after January 1, 2004, the effective date of which is in accordance with the legal principle of retroactive legislation. However, pursuant to Article 41-2 of the Inheritance Tax and Gift Tax Act prior to amendment which was applicable at the time of the transaction of the case on or around December 2003, the transaction at issue in this case should not be subject to taxation on the name trust account unless the company shareholder list has been prepared. The decision at issue interprets that the above legislation may apply to the transaction which occurred prior to the amendment without stating any specific grounds. However, such interpretation is not only contrary to the principle of no taxation without law but also may not be accepted as in substance a legislative action by the courts and an interpretation that is contrary to the principle of separation of powers. Third, the deemed gift provisions for title trusts are to impose a gift tax even if there is no substantive gift in order to achieve the policy goal of matching the substance and title of property holdings and preventing tax avoidance, which is the essential basis of tax imposition It is the established position of the Supreme Court that analogical interpretation or extension of interpretation should be strictly abstained when interpreting and applying the relevant laws. As a result, the Supreme Court has applied narrow and restricted interpretation in the scope of application of deemed gifts on title trusts. However, the decision at issue is contrary to the trend of recent Supreme Court cases. As the decision at issue involves the revised Inheritance Tax and Gift Tax Act as amended by Law No. 7010 on December 30, 2003, approximately 15 years ago, there may be questions as to what the significance of this commentary is at this stage. The reason for writing this paper is to point out and to seek reform of the issue that the interpretation of the tax law which does not have subordinate rules regarding the subject of application of the revised regulations by the court without any legal basis is disadvantageous to its citizens and such interpretation by the court which substantively implements new legislation is in violation of the principle of no taxation without law and the principle of separation of powers. If there is no explicit regulation allowing for retroactive application of the revised regulations, this paper seeks to prevent the risk that this case becomes a wrong precedence and an interpretation contrary to relevant legal principles once again becomes an issue with similar amended legislation.