존재하지 아니한 행정처분을 대상으로 한 취소소송은 소의 이익이 없어 부적합함[각하]
Incheon District Court 2014Gudan325 ( October 14, 2014)
A revocation suit against a non-existent administrative disposition is not appropriate because there is no interest in the lawsuit.
A revocation suit against a non-existent administrative disposition is not appropriate because there is no interest in the lawsuit.
Seoul High Court 2014Nu68852
○ Kim
○ Head of tax office
Incheon District Court Decision 2014Gudan325 Decided October 14, 2014
2015.03.18
2015.04.15
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the defendant.
1. Purport of claim
The Defendant imposed capital gains tax of KRW 18,056,260 on the Plaintiff on April 2, 2013, 2007.
The disposition shall be revoked.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
If an administrative disposition is revoked, the disposition becomes null and void, and no longer exists, and the revocation lawsuit against the non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2014Du35331, May 29, 2014). In full view of the purport of the entire pleadings in the entry of No. 201, the Defendant revoked ex officio the disposition imposing capital gains tax on the Plaintiff on January 23, 2015, which is after filing an appeal, and notified the Plaintiff thereof. Accordingly, the Plaintiff’s lawsuit of this case was unlawful as against the non-existent disposition.
Therefore, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act and it shall be decided