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(영문) 대법원 2018.02.08 2017두71567

양도소득세부과처분취소

Text

The judgment below

The part against the defendant is reversed, and the judgment of the first instance on this part is revoked, and this part of the lawsuit is brought.

Reasons

Judgment ex officio is made.

1. If an administrative disposition against the defendant's appeal is revoked, the disposition is 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.

(2) According to the records, the Defendant, after filing the instant final appeal, knew the fact that the disposition against the Defendant regarding the part of the lower judgment against the Defendant was revoked ex officio in accordance with the purport of the lower judgment. As such, among the instant lawsuit, seeking revocation of a disposition that had not been extinguished and thus, became illegal as there was no benefit of lawsuit.

2. The Plaintiff’s final appeal did not state the grounds of final appeal in the petition of final appeal filed by the appellant, and did not submit the grounds of final appeal within the statutory period (the grounds of final appeal filed by the Plaintiff’s attorney was received on January 9, 2018), Article 8(2) of the Administrative Litigation Act, Article 429 of the Civil Procedure Act, and Article 5 of the Act on Special Cases Concerning the Procedure for Final Appeal are dismissed.

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and this part of the judgment of the court of first instance is sufficient for the Supreme Court to directly render a judgment, and thus, it is dismissed. The plaintiff's appeal is dismissed, and 3/5 of the total costs of the lawsuit is to be borne by the plaintiff and the remainder is to be borne by the defendant. It is so decided as per Disposition by the assent of all participating Justices