항소심 계속 중 1심 패소부분을 직권취소하여 소의 이익이 없음[각하]
Incheon District Court 2012Guhap526 (2012.06.08)
early 201J 3392 ( November 15, 201)
There is no benefit of action by ex officio revocation of the part against the first instance court during the appellate trial.
In accordance with the purport of the judgment of the court of first instance during the appellate trial, the part against which the judgment of the court of first instance has been revoked ex officio, which is a revocation suit against non-existent administrative disposition
2012Nu20290 Revocation of disposition of imposing capital gains tax
KimA
The director of the North Incheon National Tax Office
Incheon District Court Decision 2012Guhap526 Decided June 8, 2012
December 7, 2012
February 1, 2013
1.The judgment of the first instance shall be modified as follows:
A. On August 16, 201, the Plaintiff’s lawsuit on the part exceeding KRW 000 of the disposition imposing capital gains tax on the Plaintiff on August 16, 201 is dismissed.
B. The plaintiff's remaining claims are dismissed.
2. 1/2 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.
1. Purport of claim
The Defendant’s disposition of imposition of capital gains tax of KRW 000 to the Plaintiff on August 16, 2011 is revoked.
2. Purport of appeal
The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.
1. Quotation of judgment of the first instance;
The time for this decision shall be added to each corresponding part of the judgment of the first instance, and the "No. 9" shall be added to the column 2 of the judgment of the first instance [based on recognition], and the "No. 2 of the reasoning of the judgment of the first instance shall be removed from paragraph 3, and the part exceeding 00 won among the dispositions of this case shall be deleted as it is illegal, and therefore, paragraphs 1 and 2 of the reasoning of the judgment of the first instance shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.
2. The addition;
A. Part between 12 and 13 of the first instance judgment
“C. The Plaintiff filed the instant lawsuit seeking revocation on the ground that the instant disposition was unlawful, and the court of first instance revoked the part exceeding KRW 000 of the instant disposition by accepting the Plaintiff’s assertion that the acquisition value is not a KRW 000,000, and on November 21, 2012, the Defendant filed an appeal only against the Defendant, and revoked ex officio the part exceeding KRW 00 of the instant disposition in accordance with the purport of the judgment of the first instance court.)
B. Part between 13 and 14 of the judgment of the first instance
2. Whether the plaintiff's action on the above revocation of authority is legitimate
If an administrative disposition is revoked, the disposition becomes null and void, and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2009Du16879, Apr. 29, 2010). As seen earlier, the part exceeding KRW 000, among the dispositions in this case, is revoked ex officio by the Defendant when it came to this court, and thus, the Plaintiff’s lawsuit on this part is unlawful as there is
3. Conclusion
Therefore, the plaintiff's lawsuit regarding the part exceeding KRW 000 among the dispositions in this case is unlawful and dismissed, and the plaintiff's remaining claims should be dismissed as there is no reason. The judgment of the court of first instance is unfair with some different conclusions, so the judgment of the court of first instance is modified as it is (the burden of the total costs of the lawsuit shall be determined as the disposition in consideration of the purport of Article 32