Asian Trust Co., Ltd. (Law Firm Won, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 2010Gahap78901 Decided December 15, 2010

June 1, 2011

1. Revocation of a judgment of the first instance;

2. To transfer the instant case to the District Court.

The defendant shall pay to the plaintiff 1,391,029,022 interest per annum with 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Basic facts

A. Assignment of the value-added tax refund claim of the non-party company

(1) On March 11, 2009, the Plaintiff entered into a management-type land trust agreement and business agreement for the implementation of the second new new construction project in the Pakistan, the truster of the non-party company as the non-party company (hereinafter “non-party company”) and agreed to receive value-added tax refund claims related to the said project from the non-party company.

(2) The Plaintiff transferred the non-party company’s value-added tax refund claim arising from the non-party company’s transfer from March 2009 to January 2012, and on April 15, 2009, on behalf of the non-party company, notified the director of the tax office having jurisdiction over the Defendant of the assignment of the above claim, and the notification reached the director of the tax office having jurisdiction over that time.

(b) A claim for value-added tax refund;

In relation to the above business, on March 24, 2010, the defendant issued a decision to correct the amount of KRW 24,525,000 for filing a final return of value-added tax refund, KRW 3,558,270 for January 3, 2009, KRW 5,400 for February 5, 2009, and KRW 2009 for the non-party company, and paid each of the above refunds to the non-party company on the following day. On January 25, 2010, the defendant received a final return of the value-added tax refund from the non-party company on February 11, 201, and refunded KRW 812,490,750 for the non-party company on February 11, 2010. The defendant received a preliminary return of the value-added tax refund from the non-party company on May 37, 2010, and refunded the above refunds to the non-party company.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, 3, 5 (including each number), and the purport of the whole pleadings

2. Determination on the legitimacy of the judgment of the court of first instance

A. Legal nature of right to request a return under the Value-Added Tax Act

Articles 19 and 24(1) of the Value-Added Tax Act and Article 72(1) of the Enforcement Decree of the same Act provide that “The entrepreneur shall file a final return with the head of a tax office within 25 days from the end of each taxable period, and the head of a tax office shall, in principle, refund to the entrepreneur within 30 days after the expiration of the final return period, the amount of refundable tax for each taxable period.” Meanwhile, Article 21 and Article 22(1) of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the same Act provide that “The obligation to pay value-added tax is established when the taxable period expires

As the Value-Added Tax Act stipulates that the amount of the input tax after deducting the input tax amount from the output tax amount in the relevant taxable period under the Value-Added Tax Act is the payable tax amount, the refund under the Value-Added Tax Act is generated under such tax laws and regulations, and in calculating the payable tax amount, the refund is made when the input tax amount in the taxable period exceeds the output tax

Tax refund under the Value-Added Tax Act is the so-called secondary tax amount, which is not only caused by the Act on Value-Added Tax, which is the public law, but also requires the exercise of the “determination” of the tax amount. This is a refund based on the cause under the public law. As such, it differs from the return of unjust enrichment and erroneous payment made as a return of unjust enrichment without any legal cause due to invalidation or cancellation of the act of confirming the tax amount, etc. In light of this, it is reasonable to view that the taxpayer would have the right to claim the return of unjust enrichment under the public law against the State, unlike the right to claim the return of unjust enrichment

Meanwhile, the Supreme Court en banc Decision 2007Da79534 Decided January 10, 2008, which is invoked in the first instance judgment, is related to the benefits received or held by the State without any legal cause despite the existence of a tax obligation from the beginning or the extinction thereof, and it is inappropriate to invoke this case as it is in this case. In addition, the Supreme Court Decision 88Nu6436 Decided June 15, 1989, which states that the nature of the tax amount is a claim for return of unjust enrichment under the Civil Act, is related to the return of erroneous payments under the Income Tax Act, and the above en banc Decision 91Da13342 Decided July 9, 191, the Supreme Court Decision 94Da3405 Decided April 12, 1996, and the Supreme Court Decision 95Da40630 Decided September 6, 196, and the Supreme Court Decision 2000Da36497 Decided July 16, 1997.

After all, tax refund under the Value-Added Tax Act is applied to the tax law as the tax amount by side(-). Therefore, it is reasonable to review and determine the tax refund claim from the administrative court which is the professional law in the public law as the party litigation.

(b) Exclusive jurisdiction over administrative cases;

The former part of Article 9(1) of the Administrative Litigation Act provides that "the court of first instance having jurisdiction over the location of the defendant shall be the administrative court having jurisdiction over the location of the defendant." Article 40 of the same Act provides that "In the case of a defendant by the State or a public organization, the location of the administrative agency concerned shall be deemed the location of the defendant." Thus, an administrative case shall be deemed to fall under the exclusive jurisdiction of the administrative court. Thus, an administrative case shall be examined and determined by a general district court, which is not an administrative court, which has jurisdiction over the exclusive jurisdiction of the administrative court, shall be subject to exclusive jurisdiction. In addition, Article 7 of the Administrative Litigation Act provides that where an administrative litigation is instituted to a court with different levels without the plaintiff's intention or gross negligence, it shall be transferred to the competent court by applying Article 31(1) of the Civil Procedure Act, and it is desirable to transfer it to the competent court more than to dismiss a lawsuit on the ground of illegality of jurisdiction than to transfer it to the competent court without intention or gross negligence, and it shall be transferred to the competent court prior to the administrative litigation procedure, if it does not exist.

C. Sub-decision

As seen earlier, the administrative court having jurisdiction over the location of the relevant administrative agency becomes the exclusive court of the first instance with respect to the party litigation in public law. Since the fact that the location of the head of the Pakistan Tax Office, which is the relevant administrative agency of the instant case, is obvious in the record, the district court of the first instance which has jurisdiction over the Pakistan-si, shall be the competent court of the first instance. However, since the lawsuit in this case was filed and tried at the Seoul Central District Court without jurisdiction with respect to the administrative case, there was an error in violation of the exclusive jurisdiction, and it is difficult to view that the lawsuit in this case is unlawful and dismissed even if the plaintiff was intentionally or by gross negligence or transferred to the

3. Conclusion

Therefore, the judgment of the first instance is revoked and the case is transferred to the District Court, which is the cause of the jurisdiction, and it is so decided as per Disposition.

Judge Cho Jong-dae (Presiding Judge)