(b) Whether the registration tax is heavy in cases where the previous head office building continues to be used as a branch office or office while relocating its head office outside the large city;

C. The validity of taxation disposition that misleads the legal and factual relations of the taxable object;

(d) The case holding that the tax disposition subject to imposition of registration tax by misunderstanding the case of paragraph (b) cannot be objectively apparent from the appearance of its defect, and thus, it is not void as a matter of course.

B. If a building was newly constructed and used as the main office, and the same building continued to be used as the Seoul branch office as the main office was relocated to the outside of Seoul, it cannot be deemed that the real estate was acquired in advance in connection with the establishment of the Seoul branch office. Therefore, it cannot be deemed that the registration of real estate acquisition is subject to heavy registration tax under Article 138(1)3 of the Local Tax Act and Article 102(2) of the Enforcement Decree thereof.

C. In a case where there are objective circumstances to mislead the person who is subject to taxation as to the legal relation or factual relations, and where it is possible to clarify whether it is subject to taxation only by accurately investigating the factual relations, the defect cannot be deemed to be apparent. Therefore, even though the defect is serious, the taxation disposition that misleads the legal relation or factual relations of the subject of taxation cannot be deemed to be null and void as a matter of course and void.

D. In the event that the taxation authority imposes a tax on the establishment of the Seoul branch after the completion of the registration of real estate acquisition by mistake that the acquisition of real estate constitutes an excessive subject of registration tax as a real estate registration for the establishment of a branch under Article 138(1)3 of the Local Tax Act, the issue of whether the acquisition of real estate is not related to the establishment of the Seoul branch and the alteration of the purpose of the use of real estate for the branch, and is merely nothing more than that of the alteration of the purpose of the use of real estate for the branch, can only be revealed by the investigation of facts. As such, the defense detailed and disposition that misleads the fact of taxation cannot be deemed as a disposition

On the first ground for appeal

According to the reasoning of the judgment below, the court below found that the plaintiff corporation established on June 2, 1971 with its head office in Jongno-gu ( Address 1 omitted) transferred its head office to Gangnam-gu Seoul ( Address 2 omitted), but newly constructed a building on the land outside Dobong-gu Seoul Metropolitan Government ( Address 3 omitted) and relocated its head office to the said place. On July 10, 1988, the head office was relocated to Cheongcheon-si ( Address 4 omitted) and the previous head office was established at the seat of the previous head office. Since the head of Dobong-gu who was delegated by the defendant market, deemed the above real estate acquisition registration to fall under the real estate registration of the establishment of the branch office in a large city as provided in Articles 138 (1) 3 and 102 (2) of the Local Tax Act, and determined that the remaining amount after deducting the tax amount paid before the heavy registration tax amount and the tax amount paid from the defense tax amount to be paid by the plaintiff, the defendant did not meet the legislative purpose of the previous provision and the registration tax amount paid to the plaintiff.

However, according to Articles 6(1) and 6(3) and 10(3) of the Defense Tax Act repealed by Act No. 4280 on December 31, 1990, in cases where the defense tax, which is a national tax, is additionally imposed and collected, the head of a Si/Gun or a public official delegated by him, imposes and collects the defense tax in the same manner as local tax is imposed and collected, but the defense tax collected by a local government is to be paid to the National Treasury in accordance with Article 8 of the National Tax Collection Act (Si/Gun entrusted collection). Thus, even if the defendant received the defense tax in this case, the benefit accrued therefrom belongs to the National Treasury. Accordingly, if the plaintiff paid the defense tax in error due to a disposition that has become void as a result of a disposition that has become void, he/she shall request the National Treasury to return it (see Supreme Court Decision 87Meu3177 delivered on February 14,

The judgment of the court below which ordered the defendant to return the defense tax amount is unlawful and there is a reason to point this out.

Concerning the second and third points

As determined by the court below, if the plaintiff continued to use the same building as the principal office after newly building the building on the ground of Dobong-gu Seoul Metropolitan Government ( Address 3 omitted) as the principal office was relocated to outside Seoul, the plaintiff cannot be deemed to have acquired the real estate of this case in advance in relation to the establishment of the Seoul branch (see Supreme Court Decision 87Nu556 delivered on January 31, 1989). Therefore, the registration of the real estate of this case cannot be deemed to be subject to heavy registration tax under Article 138(1)3 of the Local Tax Act and Article 102(2) of the Enforcement Decree of the Local Tax Act (see Supreme Court Decision 87Nu68 delivered on October 13, 1987).

The Supreme Court Decision 87Nu356 Decided August 25, 1987 87 87Nu356 Decided August 25, 1987 differs from this case.

In the same purport, the judgment of the court below that the disposition of this case was unlawful is just, and there is no error of law by misunderstanding legal principles or violation of precedents.

However, if there are objective reasons to believe that legal relations or factual relations subject to taxation exist, and it is apparent whether or not the real estate is subject to taxation only after an accurate investigation, the defect is apparent. Thus, even if the legal relations or factual relations subject to taxation are serious, it can not be deemed as invalid as a matter of course and can be cancelled as it is the established opinion of the party members (see, e.g., Supreme Court Decisions 81Nu69, Oct. 26, 1982; 86Da1689, Feb. 24, 1987; 87Da2457, Mar. 14, 1989; 90Nu10862, Nov. 27, 190; 92Nu13127, Nov. 11, 1992; 200Nu317, May 17, 1994).

Therefore, the judgment of the court below which accepted the plaintiff's claim for return of unjust enrichment on the premise that the disposition of this case is null and void as per se is erroneous in the misapprehension of legal principles as to the invalidation

There is also reason to point this out.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)