2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

both the original decision and the first instance judgment are revoked. The imposition of capital gains tax of 13,783,580 won for the year 2007 by the defendant (hereinafter referred to as the "defendant") against the plaintiff (hereinafter referred to as the "Plaintiff") on October 5, 2009 shall be revoked.

The following facts are significant or obvious to this court in terms of records:

A. On June 22, 2010, the Plaintiff filed a claim against the Plaintiff for revocation of the disposition of imposition of capital gains tax of KRW 13,783,580 (hereinafter “instant disposition”) for the year 2007, which was rendered against the Plaintiff on October 5, 2009, the Seoul Administrative Court rendered a judgment of the first instance that dismissed the Plaintiff’s claim on October 14, 201.

B. On November 3, 2011, the Plaintiff appealed as Seoul High Court 2011Nu39426, and the said court also rendered a judgment dismissing the Plaintiff’s appeal on June 8, 2012.

C. Accordingly, the Plaintiff appealed by Supreme Court Decision 2012Du15708 Decided July 11, 2012. However, the Supreme Court dismissed the Plaintiff’s appeal due to the delay of hearing in accordance with Articles 4 and 5 of the Act on Special Cases Concerning the Procedure for Appeal of Supreme Court on October 25, 2012, and the said judgment became final and conclusive by serving the Plaintiff on November 1, 2012.

D. However, on November 26, 2012, the Plaintiff filed a lawsuit seeking revocation, etc. of the said judgment as Seoul High Court 2012Nu39426 on the ground that the Seoul High Court’s judgment was erroneous by omitting judgment on the Plaintiff’s assertion, and that it constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act, which is applicable mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, constituted “when the judgment was omitted on important matters that may affect the judgment”. The Seoul High Court rendered a lawsuit seeking revocation, etc. of the said judgment as the Seoul High Court 2012Nu200 on the ground that the Plaintiff, who had already asserted the same cause by appeal, cannot file a petition for retrial on the grounds of omission of judgment, and thus, the said lawsuit was unlawful. However, on May 20, 2013, the Plaintiff appealed as the Supreme Court Decision 2013Du10236 on May 20, 2013, and the Supreme Court dismissed the Plaintiff’s final appeal as well.

E. On September 26, 2013, the Plaintiff filed a lawsuit seeking the revocation, etc. of the Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2011Nu39426, and the Seoul High Court Decision 2012Nu271, and filed a final appeal with Supreme Court Decision 2014Du5873 Decided March 27, 2014. However, the instant case was also dismissed on July 10, 2014 and became final and conclusive by serving the Plaintiff on July 16, 2014.

F. On August 13, 2004, the Plaintiff filed a lawsuit seeking the revocation, etc. of the Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2011Nu39426, and the Seoul High Court Decision 2012Nu271, and filed a final appeal with the Supreme Court Decision 2015Du666 Decided December 24, 2014. However, the instant case was also dismissed on April 23, 2015, and became final and conclusive upon delivery to the Plaintiff on January 13, 2015.

G. On May 14, 2015, the Plaintiff filed a lawsuit seeking retrial as Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2012Nu271, Seoul High Court Decision 2013Nu230, Seoul High Court Decision 2014Nu176, and Seoul High Court Decision 2014Nu179, Dec. 30, 2015. However, the foregoing case was also dismissed on April 15, 2016, and became final and conclusive by serving the Plaintiff on April 18, 2016.

H. On May 11, 2016, the Plaintiff filed a lawsuit seeking retrial as Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2012Nu271, Seoul High Court Decision 2013Nu230, Seoul High Court Decision 2014Nu176, Seoul High Court Decision 2014Nu176, Seoul High Court Decision 2015Nu135, on which the Plaintiff was declared to dismiss the lawsuit, and appealed on June 30, 2016. However, the foregoing case was also dismissed on September 30, 2016, and it was finalized by serving the Plaintiff on October 5, 2016.

(i) On October 31, 2016, the Plaintiff filed a lawsuit seeking retrial as Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2011Nu39426, Seoul High Court Decision 2012Nu271, Seoul High Court Decision 2013Nu230, Seoul High Court Decision 2014Nu176, Seoul High Court Decision 2014Nu175, Seoul High Court Decision 2015Nu135, Seoul High Court Decision 2016Nu118, the Plaintiff filed a lawsuit claiming that there are grounds for retrial, and filed a lawsuit for retrial as Supreme Court Decision 2017Du329, May 18, 2017. However, the foregoing case was also dismissed on September 21, 2017, which became final and conclusive upon being served on the Plaintiff on September 27, 2017.

(j) Accordingly, on October 19, 2017, the Plaintiff filed a lawsuit for retrial of this case by asserting that there are grounds for retrial in both Seoul High Court Decision 2011Nu39426, Seoul High Court 2012Nu271, Seoul High Court 2013Nu230, Seoul High Court 2014Nu176, Seoul High Court 2015Nu135, Seoul High Court 2015Nu135, Seoul High Court 2016Nu118, Seoul High Court 2016Nu521 (hereinafter referred to as “instant judgment subject to retrial”).

2. Summary of the plaintiff's assertion

In the instant judgment subject to a retrial, there was an error in omission of judgment, which did not render a determination on the defect of a tax notice regarding the instant disposition. Meanwhile, the Plaintiff asserted the grounds for final appeal against the instant judgment subject to a retrial, but failed to obtain a specific judgment. However, if the Plaintiff did not receive such specific judgment, it cannot be deemed that the instant judgment subject to a retrial constitutes “when a party asserts the grounds for a retrial by appeal” as stipulated in the proviso of Article 451(1) of the Civil Procedure Act. Accordingly, the instant judgment subject to a retrial should be deemed to constitute grounds for retrial under Article 451(1)9 of the Civil Procedure Act, which shall apply mutatis mutandis pursuant to Article

3. Determination on the legitimacy of the litigation for retrial of this case

A. The exercise of the right to a trial is also regulated by the principle of trust and good faith in order to protect the other party and secure judicial function. Inasmuch as it is evident that a court may not accept the request for retrial on several occasions on the grounds that it cannot be legally accepted, barring special circumstances, repeated a request for retrial with the same content may not be permitted (see, e.g., Supreme Court Decision 2015Da2063, Apr. 29, 2016).

According to the records, the plaintiff filed a request for reexamination several times for the same or similar reasons as the lawsuit of this case, and received a dismissal judgment. The lawsuit of this case is repeatedly filed for the same or similar reasons as that of the previous request for retrial, and it cannot be allowed as it constitutes abuse of the right of lawsuit. Therefore, the lawsuit of this case is unlawful as it constitutes abuse of the right of lawsuit

B. A party may not file a lawsuit for retrial, if he/she had asserted a ground for retrial by an appeal or did not know it (proviso of Article 451(1) of the Civil Procedure Act). This also applies where an appeal against a judgment subject to retrial was dismissed by a judgment of rejection of hearing under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal (see Supreme Court Decision 2014Da50944, Nov. 13, 2014).

The Plaintiff asserts to the effect that: (a) the Seoul High Court Decision 201Nu39426 rendered a judgment among the instant judgment subject to a retrial contains an error in omission of judgment as otherwise alleged; and (b) the remainder of the judgment subject to a retrial did not render any determination thereafter; and (c) thus, there was an error in omission of judgment. However, even if there was an error in omission of judgment in the instant judgment subject to a retrial, if the Plaintiff did not assert it as the grounds for a retrial pursuant to the proviso to Article 451(1) of the Civil Procedure Act, unless the Plaintiff asserted it as the grounds for a retrial pursuant to the proviso to Article 451(1) of the Civil Procedure Act, and even if the Plaintiff asserted it as the grounds for a retrial, it cannot be asserted pursuant to the proviso to Article 451(1)

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus it is so decided as per Disposition.