Seoul High Court 84Gu573 (1985.17)

It does not necessarily require a prior trial procedure for each illegal cause.

In a lawsuit for revocation of a taxation disposition, the individual illegal grounds that the recognition of income amount is erroneous are merely an attack and defense that the claim is justified, and therefore, it does not necessarily require a prior trial procedure as to the individual illegal grounds.

Article 19 of the Administrative Litigation Act, Article 18 of the Administrative Litigation Act

Article 8 of the Administrative Litigation Act, Article 193 of the Civil Procedure Act

A. A lawsuit seeking revocation of a taxation disposition is based on the substantive and procedural grounds for cancellation of the taxation disposition, and the subject of the hearing should be understood as the existence of the income amount determined by the taxation authority.

B. In a lawsuit for revocation of a taxation disposition, each illegal cause, which states that the recognition of income amount is erroneous, is merely an attack and defense that the claim is justified, and thus, it does not necessarily require a prior trial procedure as to the individual illegal cause.

C. The text of the judgment must be specified and its contents must be specified by the order itself. Thus, the lawsuit of the part of the claim for revocation of the tax disposition corresponding to the amount of tax disposition, among the tax disposition, shall be dismissed, and the remaining part of the claim for revocation of the tax disposition shall be dismissed, and it cannot be specified within the scope of the plaintiff's lawsuit from among the tax amount imposed, and therefore, the above order shall be unlawful because the dismissal part cannot be separated, and it shall be against the clarity that should be equipped with the judgment.

A. Article 19 of the Administrative Litigation Act / Article 18 of the Administrative Litigation Act / Article 18 of the Administrative Litigation Act, Article 8 of the Administrative Litigation Act, Article 193 of the Civil Procedure Act

A. Supreme Court Decisions 85Nu418, 84Nu551, Jul. 8, 1986; 79Nu312, Nov. 11, 1980; 82Nu333, Jul. 26, 1983; 83Nu657, Apr. 10, 1984; 84Nu247, Jul. 23, 1985; 82Nu294, Mar. 8, 1983; 82Nu414, May 10, 1983

[Defendant-Appellant] The number of Attorney Park Jong-chul, Attorney Park Jae-soo, Counsel for defendant-appellant-appellant

Head of the Do Tax Office

Seoul High Court Decision 84Gu573 delivered on September 17, 1985

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the attorney are examined.

1. On the first ground for appeal:

According to the reasoning of the judgment below, in calculating corporate tax and defense tax for the portion of the business year of 1980 when the plaintiff filed a request for review against the disposition of this case, the court below rejected the plaintiff's request for review without going through the procedure of request for review. Thus, in calculating corporate tax and defense tax for the portion of the business year of 1,529,529,134, 1982, 849,900, and 1,754,515 won for the portion of the above portion of the loss of the plaintiff's lawsuit of this case, the part of seeking the revocation of the tax assessment for the portion of the loss of this case, which is the loss of this case, is unlawful by failing to go through the legitimate procedure of Article 2 (1) of the Administrative Litigation Act.

However, a lawsuit seeking revocation of a taxation disposition is based on the substantive and procedural grounds for revocation of the taxation disposition, and the subject of the deliberation should be understood as the existence or absence of the income amount determined by the tax authority. As such, the individual unlawful grounds for the determination of the income amount are merely the means of attack and defense claiming that the Plaintiff’s claim is justifiable, and thus, it does not necessarily require a prior trial procedure as to the individual unlawful grounds. As long as the Plaintiff asserted that the entire taxation disposition of this case was unreasonable on the grounds of other reasons in the examination request phase, it should be seen that the Plaintiff had gone through a legitimate prior trial procedure as to the instant taxation disposition.

Nevertheless, the court below's rejection of the plaintiff's lawsuit on the ground that it cannot be deemed that the plaintiff did not dispute the ground for revocation as alleged by the plaintiff at the examination stage and did not go through a legitimate procedure for a prior trial. Therefore, the court below erred in the misapprehension of legal principles as to the procedure for a prior trial in a revocation lawsuit, and therefore it is reasonable

2.The following are examined ex officio:

The order of the judgment must be specified and its contents must be specified by the order itself (see Supreme Court Decision 82Nu294, Mar. 9, 1983). Examining the judgment below, the order of the plaintiff's claim is 5,160,916 won of corporate tax belonging to the business year 1981 and 740,086 won of defense tax belonging to the business year 1982, corporate tax belonging to the business year 2,506,980 won, 322,584 won of defense tax belonging to the business year 1980, corporate tax belonging to the business year 1980, 136,780 won of defense tax belonging to the business year 1,028,472 won of 653,870 won of welfare tax, and it cannot be dismissed within the scope of the above decision's dismissal of the disposition of this case as an unlawful disposition of this case. Therefore, the plaintiff's remaining part of the disposition of this case cannot be dismissed.

3. Therefore, the judgment of the court below cannot be maintained without examining the remaining grounds of appeal by the plaintiff's attorney, and all of them are reversed, and the case is remanded to the Seoul High Court which is the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Choi Jae-ho (Presiding Justice)