기업과 임원 사이의 세금대납 약정에 관한 민법상 쟁점 연구 -수원고등법원 2024. 1. 18. 선고 2021나20657 판결을 중심으로-

The Company enters into a remuneration agreement with the Executive.  Ensuring that this agreement is lawful and valid is very important to protect corporate assets and ensure business transparency. In principle, taxes arising from such remuneration are borne by the Executive who receives such remuneration. However, companies sometimes agree to pay the tax on behalf of the Executive. This is intended to attract talented personnel or to prevent the departure of such personnel. This leads to corporate growth and also has a positive effect. On the other hand, the tax payment agreements impose direct or indirect burdens not only on the Company's finances but also on its members, shareholders and creditors. In particular, agreements covering high-ranking executives often invlove substantial sums, and such executives are likely to intervene in the Companies’ decision-making related to tax payment agreements. Considering this, it is necessary to take a very careful approach from the perspective of civil law on whether a tax payment agreement is established and all legal issues arising therefrom. Focusing on the court precedents concerning the above tax payment agreements for high-ranking executives, this paper examines in detail the establishment of tax payment agreements, the interpretation of dispositive documents, corporate approval and ratification issues, the establishment of tort liability, contributory negligence, liability to return unjust enrichment, and the calculation of unjust enrichment. First of all, whether a tax payment agreement is established should be strictly interpreted based on the dispositive document and its text, which guarantees objectivity and clarity. In addition, it is necessary to recognize the approval and ratification of the Company for the tax payment agreement under strict standards. Furthermore, if a high-ranking executive arbitrarily allows a Company to pay taxes on behalf of the executive, it is necessary to actively recognize the liability for intentional torts. Even if intention is not recognized, it is necessary to actively recognize tort liability due to gross negligence in light of the status and authority of the relevant executive. In light of the principles of good faith and fairness, finding of contributory negligence should be disallowed or, at a minimun, minimized. In particular, with respect to liability to return unjust enrichment, calculation based on solely on the executive’s actual gain has inherent limits. Accordingly, it is difficult to compensate for all damages suffered by the Company with the amount of liability for return of unjust enrichment alone. Even considering this, it is reasonable to actively calculate the amount of damages due to tort liability as above.