Whether a new suit is lawful

Lawsuits for retrial on final and conclusive judgment shall be permitted only when there are grounds for retrial listed in the Civil Procedure Act. Thus, this case is not recognized as grounds for retrial.

Article 70 of the Restriction of Special Taxation Act

2019dou63 Revocation of revocation of revocation of rectification

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Head of Cheongju Tax Office

September 20, 2019

October 11, 2019

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

and review

The decision subject to a retrial shall be revoked. The defendant (the defendant, hereinafter referred to as "the defendant") on February 2, 2017 (the plaintiff, hereinafter referred to as "the plaintiff")

The rejection of a request for correction of capital gains tax against the plaintiff or hereinafter referred to as "Plaintiff") shall be revoked.

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

When an appellate court rendered a judgment on the merits of a case at the appellate court, it did not institute a lawsuit for retrial against the judgment of the first instance, and the retrial shall have the exclusive jurisdiction of the court which rendered the judgment to institute a retrial (Article 8(2) of the Administrative Litigation Act and Articles 453(1) and 451(3) of the Civil Procedure Act). Therefore, regarding the judgment of the first instance, which is not the judgment of the appellate court, a lawsuit for retrial brought to the court of the first instance, which is not the case subject to retrial, is an illegal lawsuit that lacks the litigation requirements for retrial and is not merely a lawsuit that violates the jurisdiction of retrial (see Supreme Court Decision 2011Da9092, Jan. 2

However, in the case of this case, the court of first instance rendered a judgment on the merits against the plaintiff, the plaintiff appealed and rendered a judgment on the merits of appeal in the appellate court, and the plaintiff appealed, but the appellate court also rendered a final judgment on the grounds that the final judgment became final and conclusive by dismissal of appeal was significant in this court. Accordingly, in accordance with the legal principles as seen earlier, the object of retrial is not the judgment

Nevertheless, since the Plaintiff filed a lawsuit for review of this case against the judgment of the first instance court, the lawsuit for review of this case is unlawful as it is subject to a judgment that cannot be subject to review of this case.

[B] Even if there were errors in designating the subject matter of a retrial as mentioned above, a suit for a retrial on a final judgment is permitted only when there exist grounds for retrial stipulated under each subparagraph of Article 451(1) of the Civil Procedure Act. Thus, if the ground for a retrial Plaintiff’s assertion does not constitute such ground, the suit for retrial is unlawful (see, e.g., Supreme Court Decision 96Da31307, Oct. 25, 1996). (1) Even if there is any omission in the contents in the process of preparing documentary evidence as alleged by the Plaintiff, it cannot be deemed as a ground for retrial under Article 451(1)7 of the Civil Procedure Act insofar as it cannot be deemed as a false statement by a witness, an interpreter, or a party or legal representative by the party’s questioning, and (2) the omission in a judgment means the omission in the determination itself as to the method of attack and defense submitted by the Plaintiff, so long as the judgment subject to a retrial was determined in detail and rejected, it does not constitute a ground for retrial under Article 451(1).

2. Conclusion

Therefore, the lawsuit of this case is unlawful and thus it is so decided as per Disposition.