[부당이득금][공1994.12.15.(982),3266]
(a) Where the tax has been erroneously or erroneously paid or overpaid;
(b) The meaning of the fairness of the administrative act;
A. In order to make a tax erroneous or erroneously paid, the tax payment or the collection of a tax must be null and void as it has no legal basis in substance or procedural law, or as it is significant and apparent that the defect of the tax disposition is concerned. If the defect of the tax disposition is limited to the extent that the tax disposition can only be revoked, unless the tax authority voluntarily cancels it or cancels it by the appeal procedure, it cannot be deemed that the tax payment resulting therefrom constitutes unjust enrichment.
B. Even if an administrative disposition is unlawful, the effect of the administrative disposition is not denied without permission for the reason of the defect, except where there is a reason to regard the defect as null and void, because of its significant and apparent defect. Although the validity of the administrative act is not the same as res judicata of the judgment, if the defect in the administrative act belonging to the objective scope of the fairness of the judgment is merely a ground for revocation, the validity of the disposition cannot be viewed as a benefit which is not a legal ground, unless the disposition is revoked.
(a) Article 741 of the Civil Act; Article 1 of the Administrative Litigation Act / [general administrative disposition]
A.B. Supreme Court Decision 87Da544 delivered on July 7, 1987 (Gong1987,1309). Supreme Court Decision 62Da540 delivered on October 18, 1962 (No.48 delivered on April 23, 1991) (Gong191,1520)
[Judgment of the court below]
Korea
Seoul High Court Decision 93Na46355 delivered on April 13, 1994
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
In order to make an unjust enrichment, the tax payment or the collection of tax must be null and void, because there is no legal basis at all in substance or in procedure, or because of a significant and apparent defect in the taxation disposition. If the defect in the taxation disposition is merely revoked, unless the tax authority voluntarily cancels it or cancels it by the appeal procedure (see Supreme Court Decision 87Meu54, Jul. 7, 1987). Even if the original administrative disposition is unlawful, the effect of the administrative act is not denied without permission on the ground of the defect, except in cases where the defect is grave and obvious and it is deemed null and void, but it is merely a ground for revocation of the administrative act which falls within the objective scope of its fairness, and thus, it cannot be viewed as a benefit that is not a legal ground for revocation of the disposition, unless the disposition is revoked. Therefore, the decision of the court below on the ground of appeal pointing this out cannot be accepted, unless there is a clear objection to the cancellation of the decision as to the amount of the tax disposition by erroneous or erroneous means.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)