[양도소득세부과처분취소][공1987.2.15.(794),259]
Whether a judge who participated in a trial subject to review again becomes a ground for exclusion or a ground for retrial.
The original judgment, which is the object of a retrial in a case of retrial, cannot be seen as falling under the pre-trial trial under Article 37 subparagraph 5 of the Civil Procedure Act, and the judge involved in the original judgment, once again participated in the trial, does not constitute a ground for exclusion or a ground for retrial.
Article 37 subparag. 5 of the Civil Procedure Act and Article 422(1)2 of the Civil Procedure Act
Supreme Court Decision 71No27 delivered on May 11, 1971
Plaintiff
Head of Seodaemun Tax Office
Seoul High Court Decision 86No4 delivered on August 20, 1986
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below rejected the judgment of the court below as to the plaintiff's assertion that the plaintiff's auction price of the real estate owned by the plaintiff was paid to the above commercial bank, which is the creditor, and no income was actually earned since the plaintiff did not pay all the auction price of the real estate owned by the plaintiff in order to secure the loan obligation to the Korean commercial bank for the non-party 1 corporation. The court below rejected the judgment of the court below as to the above real estate because the plaintiff's assertion that the above judgment of the court below did not affect the principle of taxation of the real income of the above real estate, since the above real estate is merely an owner on the registry and the plaintiff cannot exercise the right to indemnity against the principal debtor, the judgment of the court below as to the transfer income tax of this case is unlawful since it is important to affect the judgment. The judgment of the court below as to the plaintiff's assertion that the above judgment of this case constitutes a ground for retrial as to the ground for retrial, which is an unlawful ground for rejection of the right to indemnity from the court below's judgment.
2. In addition, the original trial which is the object of a retrial cannot be considered to fall under the previous trial under Article 37 subparag. 5 of the Civil Procedure Act. Thus, the judge involved in the original trial once again participated in the trial of the new trial, and it does not constitute a ground for exclusion or a ground for retrial (see Supreme Court Decision 71No27 delivered on May 11, 1971). Thus, there is no ground for appeal pointing this out. In the end, all arguments are groundless.
3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Osung-hwan (Presiding Justice)