[2] Whether the provisions of the Civil Procedure Act apply to the service of a request for review by the Board of Audit and Inspection for the imposition and collection of taxes (affirmative)

[3] The case holding that the Board of Audit and Inspection's decision on a request for examination against a person who is confined in a prison is unlawful for delivering it to the prison warden without delivering it to the prison warden

[2] Unless the Board of Audit and Inspection has any provision concerning the service of the decision on the request for examination, which has the nature of an administrative appeal as a special exception, it shall be deemed that the provisions of the Administrative Appeals Act apply. Article 41 of the Administrative Appeals Act provides that the service of documents shall be governed by the provisions of the Civil Procedure Act. Thus, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the service

[3] The case holding that the Board of Audit and Inspection's decision on a request for examination against a person who is confined in a prison shall not be served to the prison warden and it is unlawful for him to serve his domicile as a family member

2. The plaintiff's primary claim added in the trial is dismissed.

3. The costs of lawsuit after the appeal shall be borne by the plaintiff.

[Reasons for Recognition] Unsatisfy, Eul evidence 1 to Eul evidence 9

가.소외 해남세무서장은 소외 주식회사 동신산업(이하 '동신산업'이라고만 한다)에 대하여 1998년도 법인세 서면조사를 실시하여, 동신산업이 1996. 9. 11. 소외 완도군 수산업협동조합으로부터 받을 가공톳 매출대금 333,379,200원(부가가치세 포함, 이하 '이 사건 유출금'이라 한다)을 원고가 수령하게 하고, 동신산업의 법인세 신고 당시 이 사건 유출금을 매출액에서 누락한 사실을 확인하였다.

(b)In this regard, the director of the tax office at sea imposed the amount of 303,072,00 won of the supply value, excluding value added tax, from the outflow amount in this case, on the income for the business year 1996 of the new industry at the same time, and at the same time imposed the outflow amount and other income disposition on the Plaintiff, and notified the Defendant who has jurisdiction over the Plaintiff’s domicile of the change of income

C. Accordingly, on June 10, 200, the Defendant imposed and notified the Plaintiff of the amount stated in the claim(including additional tax) as global income tax corresponding to 1996 according to the above notice(hereinafter “instant disposition”).

2. Judgment as to the main claim

A. The plaintiff's assertion

The plaintiff asserts that although the new industry invested in the non-party company's non-party company's capital stock company (hereinafter "the non-party company's capital stock company") and the new industry repaid the funds borrowed from the member company's capital stock, the plaintiff, at the time, was only the company's director, who was the representative director of the non-party company's capital stock company, withdrawn the funds of this case by using a cashier's check and deposited the funds in the non-party company's capital stock company's capital stock to the non-party company's capital stock company's capital stock company's capital stock company's capital stock company's capital stock company's capital stock company's capital stock company's capital stock company's capital stock company's capital stock

(b) Markets:

On the other hand, as alleged by the plaintiff, there is no evidence to acknowledge that the new industry as a director of the member cooperative as a result of the plaintiff's repayment of its obligation to the member cooperative. Moreover, even if all of the circumstances such as the plaintiff's assertion are acknowledged, such circumstance can only be revealed only by the defendant who is the tax authority's accurate investigation of facts, and it cannot be said that it is apparent or obvious that the defect is obvious. Thus, the plaintiff's main claim is without merit.

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

The plaintiff did not receive the outflow money of this case, and even if not, the plaintiff asserts that it is nothing more than that of the heart and sought the cancellation of the disposition of this case.

B. Judgment on the Defendant’s main defense

(1) The defendant's assertion

According to Article 55 (5) 3 and (7) of the Framework Act on National Taxes and Article 46-2 of the Board of Audit and Inspection Act, the defendant shall file an administrative litigation within 90 days from the date of receipt of the notice of decision on the request for examination. Since the plaintiff filed the lawsuit in this case on March 5, 2001 after the elapse of 90 days from the date of receipt of the notice of decision on the request for examination, the lawsuit in this case shall be asserted as unlawful since the period of filing the lawsuit in this case has expired.

(2) Nature of request for review by the Board of Audit and Inspection

The request for examination under the provisions of Article 43 (1) of the Board of Audit and Inspection Act is merely a mere purport of having a person interested in an administrative act committed by the person subject to audit and inspection of the Board of Audit and Inspection assist in the Board of Audit and Inspection in performing its duties and improving the operation of administration by having him examine whether it is lawful or not. The above procedure for the request for examination shall not be deemed to fall under the pre-trial procedure of administrative litigation against general administrative disposition (see, e.g., Supreme Court Decision 93Nu2363, May 27, 1994). However, where a request for examination under the provisions of Article 43 (1) of the Board of Audit and Inspection Act concerning the imposition and collection of taxes has gone through the procedure for objection under the Framework Act on National Taxes, it shall be deemed as having gone through an administrative appeal against the relevant disposition as necessary prior to the institution of a lawsuit seeking revocation of the disposition (see, e.g., Supreme Court Decision 90Nu7944, Feb. 26, 1991).

(3) The laws and regulations applicable to service of request for review by the Board of Audit and Inspection

In the Framework Act on National Taxes, there are special provisions different from the Civil Procedure Act concerning service of documents, but Article 46 (4) of the Board of Audit and Inspection Act only provides that the Board of Audit and Inspection shall notify the applicant of the decision on a request for examination as a document, there is no special provision concerning service, nor the provisions concerning service of the Civil Procedure Act concerning service, and there is no provision

On the other hand, Article 43 of the Administrative Appeals Act provides that the special provisions of this Act concerning administrative appeals shall not be provided for by other Acts, unless it is especially necessary to consider the specialty and peculiarity of the case, and that the special provisions of other Acts concerning administrative appeals shall not be provided for by other Acts (Paragraph 2). In light of the purport of the above provision, as long as the Board of Audit and Inspection does not provide for the service of the decision of examination request, which has the nature of special exceptions to administrative appeals, the provision of service under the Administrative Appeals Act shall be applied. Article 41 of the Administrative Appeals Act provides that the provision of the Civil Procedure Act shall apply mutatis mutandis to the service of documents, and therefore, the provision of the Civil Procedure Act shall be applied mutatis mutandis to the service of the decision of examination request by the Board of Audit and Inspection.

(4) Determination

In full view of the statements in Gap evidence 1-1, Eul evidence 1-2, Eul evidence 12-12 through Eul evidence 14 and the whole purport of the pleadings, the plaintiff was issued a ruling dismissing the request for examination against the Board of Audit and Inspection on July 27, 2000. The decision was delivered on November 29, 200 by means of registered mail, which is the plaintiff's domicile on November 29, 200, the fact that the plaintiff's wife and children were living in the prison. At the time of service of the above decision, the plaintiff could be recognized as being living in the prison, and the plaintiff's wife (the non-party 1 and the non-party 16 years old) on November 30, 200, the plaintiff's wife on November 30, 200, which is the plaintiff's domicile, was delivered to the plaintiff.

In light of the above, the notice of the decision of the Board of Audit and Inspection on the plaintiff's request for examination was served to the warden of the prison, and Article 169 of the former Civil Procedure Act (amended by Act No. 6626 of Nov. 26, 2002) provides that the service of the decision of the Board of Audit and Inspection on the plaintiff's request for examination shall be served to the warden of the prison in which the plaintiff was confined, so long as the plaintiff was in prison at the time of notification of the decision of the request for examination, the notice of the decision shall be served to the warden of the prison in which the plaintiff was confined. As seen above, since the notice of the decision of the Board of Audit and Inspection on the plaintiff's request for examination was served to the plaintiff's domicile, not to the warden of the prison in which the plaintiff was confined, the above service is unlawful, and it cannot be deemed that the plaintiff received the notice of the decision of the Board of Audit and Inspection on Nov. 30, 200, and there is no other evidence to deem that the plaintiff received the decision of the request for examination.

C. Judgment on the merits

However, as seen earlier, it is recognized that the Plaintiff received the instant amount as seen earlier, and there is no evidence to acknowledge the Plaintiff’s assertion that the Plaintiff merely received the instant amount and received it, and thus, it cannot be deemed that the instant disposition was made by mistake of facts. Moreover, as alleged by the Plaintiff, the instant disposition was not unlawful solely on the ground that the Defendant did not give the Plaintiff an opportunity to defend himself before rendering the instant disposition, and thus, the Plaintiff’s assertion on the premise that the instant disposition is unlawful is also without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case (including the main claim added at the trial) is dismissed in its entirety due to the lack of reason. The judgment of the court below as to the conjunctive claim is unfair by rejecting the above part of the lawsuit. However, since the court below was tried to the extent that it can render a judgment on the merits, it is not remanded to the court of the court of the court below, and it is decided to render a judgment on the merits. In this case where only the plaintiff appealed against the plaintiff, who is the appellant, in accordance with the principle of prohibition of disadvantageous alteration, it is not possible to revoke the judgment of the court below and dismiss the plaintiff's claim. Thus

Judges Lee Hong-hoon (Presiding Justice)