Open Decision Ledger · Tax & international taxation
Shares aggregated under the former gift tax decree and the premise of adjudication
Supreme Court, June 24, 2021, 2016Du58659 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 증여세부과처분취소
Official text on the National Law Information Center
Question
When a faithful public-interest corporation acquires shares of a domestic company, what does Article 37(7)(iii) of the former Enforcement Decree on the Inheritance and Gift Tax mean by the shares to be added in testing the holding limit, and when is the validity of a legal order a premise of adjudication that a court may review?
Holding
The provision means the same domestic-company shares held by another public-interest corporation that received property from a donor in a special relationship with that domestic company under Article 13(12) of the former Enforcement Decree. Here the donor had no such special relationship, so the shares held by Medical Corporation Eulji Hospital could not be added to those the plaintiff acquired on 2 March 2011, and the gift tax assessment of 9 July 2014 was unlawful. The Court also held that the validity of the decree provision was not a premise of adjudication, because the same result followed whether the provision was valid or void, so it could not be reviewed.
Points at issue, verbatim
공익법인 등이 출연받은 재산 등으로 내국법인의 주식을 취득하는 경우 주식보유 제한비율 초과 여부를 판단할 때 취득하는 주식 등에 합하여 계산하는 구 상속세 및 증여세법 시행령 제37조 제7항 제3호가 정한 주식의 의미
Unofficial English translation
The meaning of stocks as provided in subparagraph 3 of Article 37 (7) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which are calculated in combination with the stocks, etc. to be acquired, when determining whether the limit on the percentage of shareholding is exceeded in cases where a public interest corporation, etc. acquires shares in a domestic corporation with contributed property, etc.
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
The appeal is dismissed. The appeal costs shall be borne by the defendant.
Form of the test
Elements stated Read from the decision
공익법인 등이 출연받은 재산 등으로 내국법인의 주식을 취득하는 경우 주식보유 제한비율 초과 여부를 판단할 때 취득하는 주식 등에 합하여 계산하는 이 사건 시행령 조항 제3호가 정한 주식은
Unofficial English translation
In cases where a public interest corporation, etc. acquires shares in a domestic corporation with contributed property, etc., when determining whether the limit on the percentage of shareholding is exceeded, the stocks provided in subparagraph 3 of the Enforcement Decree provision at issue in this case, which are calculated in combination with the stocks, etc. to be acquired, are
Factors
- 공익법인 등이 출연받은 재산 등으로 내국법인의 주식을 취득하는 경우
- 취득하는 주식 등에 합하여 계산하는 구 상속세 및 증여세법 시행령 제37조 제7항 제3호가 정한 주식의 의미
- 법원이 법규명령 등이 위헌·위법인지를 심사하기 위한 요건으로서 ‘재판의 전제성’의 의미
Unofficial English translation
• In cases where a public interest corporation, etc. acquires shares in a domestic corporation with contributed property, etc.
• The meaning of stocks as provided in subparagraph 3 of Article 37 (7) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which are calculated in combination with the stocks, etc. to be acquired
• The meaning of 'a prerequisite to the adjudication' as a requirement for a court to review whether delegated legislation, etc. is unconstitutional or in violation of a statute
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2019. 6. 13. 선고 2017두33985 판결(공2019하, 1388)
Unofficial English translation
Supreme Court Decision 2017Du33985 decided June 13, 2019 (Gong 2019 Ha, 1388)
Decisions referred to
[2] 대법원 2019. 6. 13. 선고 2017두33985 판결(공2019하, 1388)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Under the current Article 48(2)(ii)(c) of the Act, may shares held by another public-interest corporation that received property from a donor in a special relationship be added when that corporation never donated its shares to the acquiring corporation?
Any decision construing Article 48(2)(ii)(c) of the Act enacted in 2016, which took the place of the deleted decree provision, would require this entry to be read again. So would a record showing that the donor stood in a special relationship under Article 13(12) of the former Decree, or that the other corporation received property from that donor.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Under the current Article 48(2)(ii)(c) of the Act, may shares held by another public-interest corporation that received property from a donor in a special relationship be added when that corporation never donated its shares to the acquiring corporation?” vs Independent “Would the decree be invalid for exceeding the statutory scope of taxation in a case where its validity is a prerequisite to adjudication?”
The primary reading asks whether shares may be added without a donation under the current Act, while the independent reading asks whether a decree exceeding statutory taxation scope would be invalid.
공익법인 등이 출연받은 재산 등으로 내국법인의 주식을 취득하는 경우 주식보유 제한비율 초과 여부를 판단할 때 취득하는 주식 등에 합하여 계산하는 구 상속세 및 증여세법 시행령 제37조 제7항 제3호가 정한 주식의 의미Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 6 October 2016 (2016Nu45778), held that Article 37(7)(iii) of the former Enforcement Decree regulated taxation beyond the scope set by Article 48(2)(ii) of the former Act and was therefore void. On that footing, and because the donor had no special relationship with Yonhap News TV, it held that the shares held by Medical Corporation Eulji Hospital could not be added to those acquired by the plaintiff, and that the gift tax assessment was unlawful.
Supreme Court standard: The Supreme Court held that the provision must be read as covering shares held by another public-interest corporation that received property from a donor in a special relationship with the domestic company. On that reading the assessment was unlawful whether the provision was valid or void, so its validity was not a premise of adjudication and the defendant's ground of appeal that the provision was valid need not be examined further. The court below had also correctly found that Article 48(2)(ii) of the former Act was not satisfied, and the Justices unanimously dismissed the defendant's appeal with the costs on it.
Distinguishing conditions
- Shares held by a public-interest corporation that received its property from a donor in a special relationship with the domestic company under Article 13(12) of the former Decree, since such shares fall within item (iii).
- A case governed by Article 48(2)(ii)(c) of the Act enacted by Act No. 14388 of 20 December 2016, which replaced the decree provision that was deleted by Presidential Decree No. 27835 of 7 February 2017.
- A dispute in which the validity of the decree provision would in fact change the outcome, since review is allowed only where it is a premise of adjudication.
Record verification notes
Test the law in force at the acquisition date of 2 March 2011, since the decision applied the provisions before the amendment of 25 July 2011 to that acquisition. Then ask whether the donor stood in a special relationship under Article 13(12) of the former Decree, and whether the other public-interest corporation received property from that donor. Finally, ask whether a ruling that the decree provision is void would change the result, because that is what the Court required for review.
From the official text
Points at issue
[1] 공익법인 등이 출연받은 재산 등으로 내국법인의 주식을 취득하는 경우 주식보유 제한비율 초과 여부를 판단할 때 취득하는 주식 등에 합하여 계산하는 구 상속세 및 증여세법 시행령 제37조 제7항 제3호가 정한 주식의 의미 [2] 법원이 법규명령 등이 위헌·위법인지를 심사하기 위한 요건으로서 ‘재판의 전제성’의 의미
Unofficial English translation
[1] The meaning of stocks as provided in subparagraph 3 of Article 37 (7) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, which are calculated in combination with the stocks, etc. to be acquired, when determining whether the limit on the percentage of shareholding is exceeded in cases where a public interest corporation, etc. acquires shares in a domestic corporation with contributed property, etc. [2] The meaning of 'a prerequisite to the adjudication' as a requirement for a court to review whether delegated legislation, etc. is unconstitutional or in violation of a statute
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
The appeal is dismissed. The appeal costs shall be borne by the defendant.
Provisions referred to
[1] 구 상속세 및 증여세법(2011. 7. 25. 법률 제10907호로 개정되기 전의 것) 제16조 제2항(현행 제16조 제2항, 제3항 참조), 제48조 제2항 제2호, 구 상속세 및 증여세법 시행령(2011. 7. 25. 대통령령 제23040호로 개정되기 전의 것) 제37조 제7항 제3호(현행 상속세 및 증여세법 제48조 제2항 제2호 (다)목 참조) [2] 헌법 제107조 제2항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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