Supreme Court Decision 2009Du14149 ( November 26, 2009)

Seoul High Court 2009Nu1053 (Law No. 9.15, 2009)

Lawsuits that do not constitute grounds for retrial are unlawful.

If a party had already asserted such a cause in the appellate trial on the decision subject to a retrial or had not knowingly asserted it, this does not constitute a ground for a retrial.

The contents of the decision shall be the same as attached.

1. The lawsuit of this case shall be dismissed.

2. The costs of the lawsuit for retrial shall be borne by the Plaintiff (Plaintiff).

Purport, purport of appeal and request for retrial

The judgment subject to a retrial shall be revoked. The disposition of imposition of capital gains tax of 85,450,310 won for the year 2002, rendered by the defendant (hereinafter referred to as the "defendant") against the plaintiff (hereinafter referred to as the "Plaintiff") on September 6, 2007 shall be revoked.

1. Determination of the original judgment

The plaintiff filed a lawsuit against the defendant for the revocation of the disposition imposing income tax on transfer stated in the purport of the above claim as the Incheon District Court 2008Gudan1259, but the plaintiff appealeded on December 11, 2008 and appealed as Seoul High Court 2009Nu1053, but appealed as Seoul High Court 2009Nu1053, but it was reported on July 15, 2009, and again appealed as the Supreme Court 2009Du14149, but it is obvious that the judgment subject to review became final and conclusive by being sentenced to dismissal of the appeal on November 26, 2009.

2. The plaintiff's master;

Despite the fact that the Plaintiff constitutes capital gains tax reduction or exemption under Article 69(1) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 6762 of Dec. 11, 2002) and Article 66(2)2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17829 of Dec. 30, 2002), the judgment subject to review falls under ① (1) the judgment subject to review of whether Article 66(2) of the Enforcement Decree of the same Act deviates from the scope of delegation as provided in the proviso of Article 69(1) of the same Act, and (2) the calculation of capital gains tax affected the judgment by omitting the deliberation and judgment on Article 66(3) of the Enforcement Decree of the same Act.

3. Whether the litigation for retrial of this case is legitimate

A. According to Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, a retrial suit may be instituted only when there are grounds for retrial, which are limited to each subparagraph of Article 45(1) of the Civil Procedure Act, and if it is merely a ground for retrial that does not constitute grounds for retrial, it shall be dismissed in a small

In addition, according to the proviso of Article 45(1) of the Civil Procedure Act, the time-to-be what a party asserted or did not assert while being aware of the fact by an appeal cannot bring a lawsuit for retrial on the ground again. Thus, even in a case where a party brought a lawsuit for retrial on the grounds falling under any of the subparagraphs of Article 451(1) of the Civil Procedure Act, if the party alleged such grounds in the appellate court concerning the judgment subject to retrial or did not knowingly assert his name, it shall be deemed that it does not constitute a ground for retrial, and such lawsuit for retrial shall be deemed unlawful (see, e.g., Supreme Court Decisions 93Da39553, Nov. 9, 193; 91Da29057, Nov. 12, 1991).

Therefore, the judgment of the court of final appeal cannot be brought as a ground for appeal on which the judgment of the court of final appeal was rendered, and if the judgment of the court of final appeal is omitted, the original copy of the judgment of the court of final appeal can be served, and if the judgment of the court of final appeal read the grounds for final appeal, the original copy of the judgment of the court of final appeal could be known. Thus, unless special correction is made otherwise, it could be asserted as the grounds for final appeal. If the court of final appeal did not know of the omission of judgment, the court of final appeal may not bring a lawsuit for retrial. Thus, barring any special circumstances, the omission of judgment as stipulated in Article 451 (1) 9 of the Civil Procedure Act cannot be a legitimate ground for final appeal (see, e.g., Supreme Court Decisions 205Da58236, Jan. 12, 2006; 70Da2688, Mar. 30, 1971).

B. According to the above legal principles, in the case of this case where the plaintiff raised an appeal against the judgment subject to a retrial, but the judgment subject to a retrial became final and conclusive after the Supreme Court rendered a judgment dismissing the appeal by the Supreme Court, regardless of whether the plaintiff asserted in the final appeal against the judgment of the first instance that he had omitted judgment on important circumstances affecting the judgment (the plaintiff asserted in the final appeal as to the grounds for the omission of the judgment in this case, the error or omission of the application of the statutes in the final appeal as to the grounds for the omission of the judgment in this case), and the plaintiff cannot bring a lawsuit for retrial by taking the omission of judgment in the judgment subject

4. Conclusion

In order to dismiss the litigation for retrial of this case, it is so decided as per Disposition.