[부당이득금반환][공1996.12.15.(24),3566]
The period of extinctive prescription of the right to claim restitution of unjust enrichment on the ground of the invalidity or absence of a report or disposition which is the basis of erroneous payment of local tax (=5 years)
Article 48(2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) provides that "a claim against a local government due to an erroneous payment of money collectible by the local government shall be extinguished by prescription, if it is not exercised for five years from the time it is possible to exercise its right." This includes not only a case where there is an unlawful reason that can simply revoke a return (in the case of a tax return) or a disposition for imposition (in the case of a tax return), which is the basis of payment or collection, but also a case where a return or a disposition for imposition (in the case of a tax return), which is the basis of the payment or collection, can immediately exercise its right to claim the return of unjust enrichment due to the absence of a report or disposition.
Article 48(2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) (see Article 30-5(2) of the current Local Tax Act), Article 162(1) of the Civil Act
Plaintiff (Attorney Lee Young-young, Counsel for the plaintiff-appellant)
Daegu Metropolitan City (Attorney Yoon-sung, Counsel for the plaintiff-appellant)
Daegu High Court Decision 96Na472 delivered on June 20, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
Article 48(2) of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) provides that "a claim against a local government due to erroneous payment of money collectible by the local government shall be extinguished by prescription, if it is not exercised for five years from the time it is possible to exercise its right." In the case of erroneous payment of money collectible by the five-year statute of limitations under the above provision, it shall include not only cases where there is an illegal ground simply revoking a return (in the case of a tax return) which is the basis of payment or collection or a disposition for imposition (in the case of a tax return), but also cases where a return (in the case of a tax return), which is the basis of the payment or collection, or where a return or disposition (in the case of a tax imposition), which is null and void due to a significant and obvious illegality, or there is no report or disposition, and thus, the court below shall determine that the period of extinctive prescription against the plaintiff's defendant is five years in accordance with the above provision, and shall apply Article 162(1) of the Civil Act to the grounds for appeal.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-soo (Presiding Justice)