Seoul Administrative Court 2010Gudan11941 ( October 14, 2011)

Cho High Court Decision 2010Du0191 ( October 22, 2010)

Where a decision subject to a retrial is dismissed by a final appeal, it may not be requested for retrial on the grounds of omitting the decision subject to a retrial

In such a case, a new trial may not be requested on the grounds of omitting a judgment, regardless of whether an omission in a judgment in the final appeal was the grounds for final appeal, since a final appeal was filed against the original judgment and the final appeal was dismissed by the Supreme Court.

2012Nu271 Revocation of disposition of imposing capital gains tax

IsaA

head of Sung Dong Tax Office

Seoul Administrative Court Decision 2010Gudan11941 decided October 14, 2011

on April 18, 2013

May 2, 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

The judgment subject to a retrial and the judgment of the first instance are revoked. The imposition of capital gains tax of 000 won for the year 2007 by the defendant (hereinafter referred to as the "defendants") against the plaintiff (hereinafter referred to as the "Plaintiffs") on October 5, 2009 is revoked.

1. Determination of the original judgment

The following facts are clear in records:

A. On June 22, 2010, the Plaintiff filed a claim against the Defendant for revocation of the disposition of imposition of capital gains tax of KRW 0000 for the year 2007 against the Plaintiff on October 5, 2009 by the Seoul Administrative Court Decision 2010Gudan11941 (hereinafter “instant disposition”), but the said court rendered a judgment dismissing the Plaintiff’s claim on October 14, 201.

B. On November 3, 2011, the Plaintiff appealed as Seoul High Court Decision 2011Nu39426, and the said court rendered a judgment subject to a retrial that dismissed the Plaintiff’s appeal on June 8, 2012.

C. On July 11, 2012, the Plaintiff filed a final appeal with Supreme Court Decision 2012Du15708 Decided July 11, 2012, but the Supreme Court, on October 25, 2012, dismissed the Plaintiff’s final appeal due to the continuous trial in accordance with Articles 4 and 5 of the Act on Special Cases Concerning the Procedure for the Supreme Court Decision, and the said Supreme Court Decision became final and conclusive by serving the Plaintiff on November 1, 2012.

2. The plaintiff's assertion

On August 31, 2007, the Defendant calculated the acquisition value of the instant real estate as the actual transaction value and rendered the instant disposition on the transfer of 1/2 shares (hereinafter “the instant real estate”) among the land and buildings located in the Seoul Special Metropolitan Gwangjin-gu OO000, the Seoul Special Metropolitan City OOO, and accordingly, the instant disposition was rendered. However, the Defendant’s statement of contract deposit and intermediate payment transaction withdrawal (Evidence No. 4-1), each of the transaction contract (Evidence No. 6) and testimony before the first instance trial witness B are insufficient to recognize the actual transaction value, and the acquisition value of the instant real estate constitutes a case where the actual transaction value cannot be confirmed, and thus, the judgment subject to a retrial constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act.

3. Determination

A. Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, provides that "if a case falls under any of the following subparagraphs, a lawsuit for a retrial may be brought against the final and conclusive judgment: Provided, That this shall not apply in cases where the parties have asserted the reason by appeal, or have not known that it was, the reason therefor, and where the judgment was omitted on important matters affecting the judgment" as one of the grounds for retrial.

B. In light of the proviso of Article 451(1) of the Civil Procedure Act, the judgment of the court below which became final and conclusive as the ground for appeal on which the judgment of the court of final appeal was asserted in the ground for appeal, cannot be brought a lawsuit for retrial, and if there is a error in judgment, it can be known if the original copy of the judgment of the court of final appeal was served on the original copy of the judgment, and if there is a error in judgment, it can be known if the original copy of the judgment of the court of final appeal was served on the original copy of the judgment, barring any special circumstances, it could be asserted as the ground for final appeal. Unless there are special circumstances, the omission in judgment of the court of final appeal cannot be a legitimate ground for retrial, regardless of whether the omission in judgment was alleged as the ground for final appeal (see, e.g., Supreme Court Decisions 70Da2688, Mar. 30, 1971; 2005Da58236, Jan. 12, 2006).

4. Conclusion

The litigation of this case shall be dismissed.