원심이 판결에 영향을 미칠 중요한 사항에 관하여 판단을 누락하였는지 여부(재심 사유에 해당하는지 여부)[각하]
Gwangju High Court-2014-Nu-6295 ( January 22, 2015)
Whether the court below failed to decide on important matters that may affect the judgment (whether it constitutes grounds for review)
According to the records, the plaintiff's ground of appeal as to the judgment subject to a retrial is confirmed to be identical to that of the grounds of appeal in this case. The plaintiff's appeal was dismissed by a judgment of rejection of a trial.
Article 101 of the Income Tax Act
Gwangju High Court-2015-Renit-33 ( October 10, 2016)
Na○
○ Head of tax office
2016.05.20
2016.06.10
1. The lawsuit of this case shall be dismissed.
2. The costs of retrial shall be borne by the plaintiff.
Cheong-gu Office
The judgment subject to a retrial and the judgment of the first instance shall be revoked. The imposition of ○○○ and ○○○○○○ on the transfer income tax for the year 201 by the Defendant (hereinafter “Defendant”) against the Plaintiff (hereinafter “Plaintiff”) on September 5, 2013 shall be revoked.
1. Determination of the original judgment
The following facts are clear in records:
A. The Plaintiff filed a lawsuit against the Defendant to revoke the disposition of revocation of capital gains tax by the ○○ District Court 2014 Gu Joint ○○○○○○, and the said court rendered a judgment against the Plaintiff on September 4, 2014.
B. The Plaintiff, who is dissatisfied with the above judgment of the first instance court, filed an appeal with the ○○ High Court 2014Nu○○○○○○○○○○, but the said court rendered a judgment subject to a retrial dismissing the Plaintiff’s appeal on January 22, 2015.
C. The Plaintiff filed an appeal with the Supreme Court 2015du○○○○○○○○○○○, but the appeal was dismissed on May 28, 2015 due to the mental failure on the part of the Plaintiff.
2. Determination on the legitimacy of the litigation for retrial of this case
A. Grounds for retrial of the Plaintiff’s assertion
Although the Plaintiff made a mistake in the important part of the legal act at the time of a share transfer agreement, and thus, the judgment subject to a retrial was omitted from the determination of the above argument. Therefore, there are grounds for retrial under Article 451(1)9 of the Civil Procedure Act in the judgment subject to a retrial.
B. Determination
(1) In a case where a judgment is omitted on a material fact affecting a judgment, a lawsuit for retrial may be brought against a final judgment (Article 451(1) main text and 9 of the Civil Procedure Act). However, if a party asserts, or does not assert, the grounds for retrial by an appeal, the said party may not bring an action for retrial (proviso to Article 451(1) of the Civil Procedure Act). The same applies to a case where an appeal against a judgment subject to retrial was dismissed by a judgment of non-psying trial under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal (see, e.g., Supreme Court Decision 2014Da509
(2) According to the records, at the appellate brief dated March 11, 2015, the Plaintiff presented the same assertion as the grounds for a retrial against the judgment subject to a retrial, and as seen earlier, the Plaintiff’s appeal was dismissed by a judgment of non-exclusive trial, and thus, the Plaintiff cannot file a lawsuit for retrial against the judgment subject to a retrial on the same ground.
3. Conclusion
The suit of this case is unlawful and thus dismissed.