미지급 공사채무에 갈음하여 채권자를 우선수익자로 지정하여 이 사건 신탁계약을 체결한 것은 재화의 공급에 해당하지 않음[각하]
Supreme Court Decision 2014Du6111 (Law No. 15, 2017)
The conclusion of the instant trust contract by designating a creditor as a preferential beneficiary in lieu of the unpaid construction obligation does not constitute the supply of goods.
Even if the truster, who is the debtor, entrusted the property to the trustee in place of performing the existing obligation and designated the obligee as the beneficiary, the above designation cannot be deemed to exist that there exists a separate supply of goods to the beneficiary of the truster.
Article 6 (Supply of Goods)
2017Nu253 Revocation of Disposition of Imposing Value-Added Tax
AA Corporation
BB Director of the Tax Office
[Attachment Judgment]
Supreme Court Decision 2014Du6111 Decided June 15, 2017
September 22, 2017
1. Revocation of a judgment of the first instance;
2. The action of this case shall be dismissed, including any claim established in the trial after remand.
3. All costs of the lawsuit shall be borne by the defendant.
The judgment of the first instance is revoked. The defendant revoked the disposition of imposition of value-added tax of KRW 463,427,640 on January 2, 2012 against the plaintiff on January 2, 2006 (the plaintiff extended the purport of the claim in the trial after remand).
1. Whether the lawsuit of this case is legitimate
Judgment ex officio is made.
When an administrative disposition is revoked, such disposition shall lose its validity 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 2012Du18202, Dec. 13, 2012).
According to the records, the Defendant’s revocation ex officio of the instant disposition against the Plaintiff on August 16, 2017, which was pending in the instant lawsuit, pursuant to the purport of the judgment of remanding the case. Therefore, the instant lawsuit is to seek revocation of the disposition that was not extinguished and thus, became illegal as there was no benefit of lawsuit.
2. Conclusion
If so, the judgment of the first instance court is revoked, and the lawsuit of this case is dismissed, and the total cost of the lawsuit is to be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act.