확정된 선행판결의 기판력에 저촉되어 부적법함[국승]
Supreme Court Decision 2014Du3747 (Law No. 125, 2014)
early trial 2009west4233 (2010.02.08)
In conflict with the res judicata of a final and conclusive judgment, it is illegal.
Even if the plaintiff asserts a new means of attack and defense, such as a defect in the acquisition value calculation, etc., a prior judgment that became final and conclusive that the instant disposition was lawful, the res judicata of the previous judgment that became final and conclusive still affects the claim in this case.
2014Gudan10557 Nullification of a disposition of imposition of capital gains tax
KoreaA
Head of Seodaemun Tax Office
October 29, 2014
November 26, 2014
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
On November 1, 2009, the part exceeding KRW 00,000,000 among the disposition imposing capital gains tax on the Plaintiff on November 1, 2009 is invalid.
1. Details of the disposition;
A. On October 00, 200 X, the Seoul Special Metropolitan City Regional Land Expropriation Committee made an expropriation ruling on 000/000 of 000/000 of 00,000 square meters out of 00-0 forest land owned by the Plaintiff, Seoul ○○-dong, ○○-dong, Seoul (hereinafter “instant real estate”). On October 00, 200, SH Corporation deposited KRW 000,000 for compensation for the said real estate on October 00, 200, and completed the registration of ownership transfer in its name on October 00, 200.
B. On October 00, 200 X, SH Corporation additionally deposited KRW 00,000,000 for losses, and KRW 0,000 for losses on October 00, 200 X. 00 for losses,00,000 for losses, respectively.
C. The Plaintiff made a preliminary return of the transfer income tax for the year 200 X on October 200 on the date of the first deposit of compensation on October 0, 200 X as the date of the transfer of the instant real estate, but the Defendant made a correction and notification of KRW 00,000,000, the transfer income tax for the year 200 X on the ground that the Plaintiff made an additional deposit of compensation after the transfer registration of ownership on the said real estate on October 0, 200, on the ground that there was an additional deposit of compensation after the transfer registration of ownership on the said real estate (hereinafter “instant disposition”).
D. On March 23, 2010, the Plaintiff filed a lawsuit seeking revocation of the above disposition (this Court 2010Gudan4172 case) on the ground that there was an error in calculating the transfer time of the instant disposition. However, on September 28, 2010, the court rendered a judgment dismissing the Plaintiff’s claim on the premise that the above disposition is lawful, and the said judgment became final and conclusive on October 28, 201 following the dismissal of the appeal on June 29, 2011.
E. On December 23, 2012, the Plaintiff filed a lawsuit seeking confirmation of invalidity of the instant disposition (this Court Decision 2012Gudan25333). However, the court dismissed the lawsuit on June 19, 2013 on the ground that it goes against the res judicata of the previous final and conclusive judgment. The judgment became final and conclusive on May 29, 2014 following the dismissal of appeal on January 8, 2014.
F. On October 0, 2014, the Plaintiff asserted that the acquisition value of the instant real estate was KRW 00,000,000 upon filing a claim for correction with the Defendant. However, on October 0, 2014, the Defendant notified the Plaintiff of the fact that the said claim for correction was filed three years after the statutory due date of return expires.
[Ground of Recognition] Unstrifed Facts, Gap 1, 2, 8, 9, Eul 1-1 through 5-7
2. Judgment on the plaintiff's claim
A. The plaintiff's assertion
The transfer date of the instant real estate is 00.000.00. In addition, the actual acquisition price of the instant real estate is 00,000,000 won. In such a case, the legitimate transfer income tax amount is 00,000,000 won. Therefore, the part exceeding the above legitimate tax amount among the instant disposition is null and void.
B. Determination
As seen earlier, the prior judgment that held the disposition of this case lawful has become final and conclusive, and even if the Plaintiff asserted a new means of attack and defense, such as a defect in the calculation of acquisition value, the res judicata effect of the prior judgment, which became final and conclusive, shall still affect the claim of this case. Therefore, the claim of this case seeking confirmation of invalidity of the disposition of this case is not justified contrary to the res judicata effect of the final and conclusive judgment (in addition, the Plaintiff additionally claims that “the Defendant would correct the capital gains tax amount to the Plaintiff as KRW 00,000,000,” and even if the Plaintiff requested revocation or invalidity of the notification of the result of the request for correction as of October 0, 2014, the Plaintiff’s request for correction was filed after the lapse of the period of the request for correction, and thus, the Plaintiff’s refusal of the request for correction on the grounds of the expiration of the period is not subject to an appeal (see, e.g., Supreme Court Decision 90Nu571, Dec. 26, 1990).
3. Conclusion
The plaintiff's claim of this case is dismissed.