Chuncheon District Court Gangnam Branch Branch 201Guhap939, 2012.05.08

No lawsuit may be brought against a final and conclusive judgment on the grounds asserted as the grounds for appeal.

Unless there are special circumstances, it is reasonable to view that the grounds for retrial have been dismissed by the appellate court as follows, regardless of whether it was asserted as the grounds for appeal in the final appeal, in view of the purport of the proviso of Article 451(1) of the Civil Procedure Act, which provides for the supplement of the review, and the nature of the trial without hearing, and the case where the appellate court dismisses it as the appellate court

Article 451(1) of the Civil Procedure Act

(Chuncheon)Revocation of revocation of the imposition of value-added tax 2012Nu21

LAA

hill of the tax office

Chuncheon District Court Decision 2011Guhap939 Decided May 8, 2012

January 30, 2013

February 6, 2013

1. The lawsuit of this case shall be dismissed.

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

Effect of claim, purport of appeal and request for retrial

All of the original judgment and the first instance judgment are revoked. The imposition of value-added tax of KRW 000 on December 1, 201, and value-added tax of KRW 000 on March 2, 201, shall be revoked.

1. Determination of the original judgment

The following facts are significant in this court:

A. On December 1, 2011, the Defendant issued a notice of each of the instant dispositions (hereinafter referred to as “each of the instant dispositions”) on March 2, 201, on the ground that the Plaintiff filed a return of value-added tax return at 000 on the grounds that the Plaintiff was registered as a general taxable person and carried on business as a general taxable person, and that the Plaintiff’s return of the scheduled value-added tax set at 1 December 201, 201, and the Plaintiff filed a return of the return of the return of value-added tax at 200 won on March 2, 2012.

B. On May 8, 2012, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of each of the dispositions of this case under the Gangwon District Court Branch Branch 201Guhap939, but the said court rendered a judgment dismissing the Plaintiff’s lawsuit on the grounds that the Plaintiff did not go through a legitimate procedure of a prior trial in accordance with the Framework Act on National Taxes.

C. The Plaintiff appealed as Seoul High Court (Chuncheon) 2012Nu4666, while the said court rendered a judgment dismissing the Plaintiff’s appeal on August 29, 2012, and the said judgment was served on the Plaintiff on September 3, 2012.

D. The Plaintiff appealed as the Supreme Court Decision 2012Du20403 on November 15, 2012, and the Supreme Court rendered a decision to dismiss an appeal under Articles 4 and 5 of the Act on Special Cases Concerning the Procedure for Appeal on the Trial of Supreme Court, and the original judgment was served on the Plaintiff on November 21, 2012.

2. Grounds for retrial and determination

A. The plaintiff's assertion

Although the plaintiff filed an administrative suit against each of the dispositions of this case without going through the pre-trial procedure under the Framework Act on National Taxes, the decision subject to a retrial, without examining the only evidence, deemed unlawful and dismissed the plaintiff's appeal. Therefore, the decision subject to a retrial did not make a proper decision on the plaintiff's argument, and this constitutes "when the judgment was omitted on important matters that affect the judgment, which is the grounds for a retrial under Article 451 (1) 9 of the Civil Procedure Act.

B. Determination

(1) Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, provides that "a lawsuit for a retrial may be brought against a final judgment in any of the following cases," and the proviso provides that "if a party claims the grounds for a retrial by appeal, or does not know the grounds for appeal, this provision shall not apply." However, in light of the proviso of Article 451(1) of the Civil Procedure Act, a lawsuit for retrial cannot be brought against the final judgment, which became final and conclusive as the grounds for appeal are asserted as the grounds for appeal, and, on the other hand, it can be known when the original copy of the judgment was served, whether omission in judgment was omitted or not, if the court did not know thereof, it is not possible to bring a lawsuit for retrial. Accordingly, regardless of whether the grounds for a retrial under Article 451(1)9 of the Civil Procedure Act were asserted as the grounds for a final appeal in the final appeal, it is reasonable to view that the final appeal is dismissed as a trial of the lower court's decision as 2008.

(2) In light of the foregoing legal principles, the Plaintiff, regardless of whether the Plaintiff asserted that the judgment was omitted in the final appeal against the judgment subject to a retrial, and, on September 3, 2012, read the original copy of the judgment subject to a retrial served on September 3, 2012, cannot file a lawsuit for retrial by taking the omission of the judgment subject to a retrial as grounds for retrial.

3. Conclusion

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