The revocation of the disposition imposing customs duties, etc. on Gwangju High Court 208Nu2186

January 22, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke all the imposition of customs duties and value-added taxes as stated in the attached Form 1 imposed on the plaintiff on April 1, 2005.

1. Details of the disposition;

A. On July 6, 2007, the Plaintiff established ○○○○ Co., Ltd. (D○○○ AG; hereinafter “D○○○”) and 5:5 with a view to manufacturing engines on a regular basis (hereinafter “the instant joint venture contract”). Meanwhile, the instant joint venture company’s “Da○○ shop Co., Ltd.”, “○○○ shop Co., Ltd.,” and “○○○ shop Co., Ltd.,” and the instant joint venture company,” were successively changed to the Plaintiff on November 5, 2004; hereinafter “○○ engine” was merged with the Plaintiff on September 6, 2001; hereinafter “○○ engine”) from Da○○○○○○ Co., Ltd., Ltd., (OO○, △△△, etc.) with respect to various technical data, such as design drawings, engine production and distribution, and production of the instant engine equipment, etc., 201.

B. After that, on April 21, 2003, ○○○○○○○○ (O○○○○○) manufacturer technology was introduced to the Minister of Finance and Economy, and applied for tax reduction or exemption on the grounds that it is a foreign investment company for conducting business of manufacturing a commercial engine with “high technology” as stipulated in Article 121-2(1)1 of the former Restriction of Special Taxation Act (amended by Act No. 7216, Jul. 26, 2004; hereinafter “former Special Taxation Act”), such as electronic control and compressed-type engine and the base system, etc.

C. From February 18, 2003 to May 4, 2004, the ○○ engine was reduced by 50% of customs duties and value-added taxes on facilities and other capital goods imported from foreign countries for the manufacture of automobile engines on a total of 86 occasions, as shown in the separate disposition of imposition No. 1, 2003.

D. Since May 12, 2004, the Plaintiff and Da○○ agreed to suspend the joint venture business for the manufacture of commercial engines based on the mutual management judgment between the Plaintiff and Da○○, and terminated both the said joint venture agreement and technology introduction agreement, and Da○ transferred 50% of the shares of ○○ engine owned to the Plaintiff.

E. On July 28, 2004 and September 1, 2004, the ○○ engine filed an application with the Minister of Finance and Economy for exemption from additional tax reduction and exemption on the grounds that it constitutes grounds for exemption from additional tax reduction and exemption from tax exemption under Article 121-5(5)4 of the former Act and Article 116-10(2)1 of the Enforcement Decree of the same Act. The Minister of Finance and Economy requested consultation with the Minister of Commerce, Industry and Energy on September 16, 2004 pursuant to related Acts and subordinate statutes, the competent Minister, the Minister of Commerce, Industry and Energy. On December 7, 2004, the Minister of Commerce, Industry and Energy presented an objective opinion that “○ engine introduced a facility for production of high technology accompanied by high technology (O○○, △△△, and △△△△, which was the premise for initial tax reduction and exemption from tax exemption from tax exemption from tax exemption from tax exemption from tax exemption from tax exemption.”

F. However, the Minister of Finance and Economy decided that the above opinion of the Minister of Commerce, Industry and Energy is insufficient to decide whether to exempt tax collection, and requested again to consult with the Minister of Commerce, Industry and Energy on December 31, 2004. The Minister of Commerce, Industry and Energy on January 12, 2005, “○○ Engine was completed on October 31, 2003, and the production of a production facility was completed on January 5, 2004, and it was possible to produce engines from around that time until 00 and the suspension of 00 and 300 were not over one year. Considering that the initial period of technology introduction is until 2014, it is not adequate for the first period of time to introduce high technology technology and to establish high technology technology jointly with 00 and now, the Plaintiff did not introduce a new 4-tech engine that was developed on behalf of the first technology development technology that was intended to introduce the new 00 and 3-○ Da 2014.

G. On March 7, 2005, the Minister of Finance and Economy decided that the ○ ○ Engine cannot be exempted from tax collection pursuant to Article 121-5(5)4 of the former Act and Article 116-10(2)1 of the Enforcement Decree of the same Act. Accordingly, on April 1, 2005, the head of the former branch office of the Sisan Customs Office (the head of the former branch office of the Sisan Customs Office succeeded to the Defendant following the revision of the post system on January 1, 2006) imposed on the Plaintiff a total of KRW 3,167,486,340 and value-added tax total of KRW 1,04,879,350, as stated in the attached disposition 1.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the Plaintiff constitutes grounds for tax reduction or exemption under Article 121-5 (5) 4 of the former Special Provision Act and Article 116-10 (2) 1 of the Enforcement Decree of the same Act, i.e., the case where the Plaintiff deemed that the Plaintiff failed to meet the above grounds for tax exemption by deeming that the Plaintiff did not meet the above grounds for tax exemption, i.e., “the case where the relevant company has achieved the purpose of tax reduction or exemption because it is deemed that it does not impede its production in its own country of products produced by a business involving high technology,”

1) The Plaintiff was jointly employed with ○○○○○○○○○-2, which is a commercial engine that meets the 3rd-level exhaust gas emission standards. For this purpose, from July 26, 2001 to May 12, 2004, the Plaintiff entered into an agreement with ○○○○○○○○○○-2, which did not receive an exemption from technology transfer of an engine, with a view to increasing the 10 billion won of technology transfer generated between the Plaintiff and ○○○○○○○○-2, which did not have been subject to technical development. As a result, the Plaintiff received technology transfer from ○○○○○-2, which did not have been subject to the technical development of 3rd-1,000 technology transfer of an engine, on the basis of the fact that the Plaintiff had already been subject to technical development of 4rd-1, which did not have been subject to the 3rd-level technical development of an engine, and that the Plaintiff had been subject to technical development of 2nd ○○-1, even after its termination.

2) Article 116-10 (2) 1 of the former Enforcement Decree of the same Act, upon delegation of Article 121-5 (5) 4 of the same Act, provides that "the Minister of Finance and Economy deems that the relevant company has no difficulty in producing products produced by a business involving high technology after consultation with the competent Minister in the Republic of Korea." It should be interpreted to the effect that " even if a joint venture contract with a foreign company is terminated, the high technology is transferred and commercialized in the Republic of Korea and has a technical ability to produce the relevant products without a technology transfer from a foreign company." The ○○ engine is deemed unlawful in the domestic process of 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 0.

3) In determining whether ○○ engine satisfies the requirements for exemption from tax collection, the Minister of Finance and Economy (or the Minister of Commerce, Industry and Energy) made it erroneous for the Minister of Finance and Economy (or the Minister of Commerce, Industry and Energy) to determine that the ○○ engine was unable to transfer high technology according to the standards which are entirely professional and objective without any actual inspection, even though it is required to determine whether the high technology transfer has been completed and has achieved the purpose of exemption from tax collection. The instant disposition was based on the fact-finding

B. Relevant statutes

The plaintiff's assertion like the judgment judgment is omitted. The plaintiff (OOOOOG) transferred the technology of producing the diesel engine from Da○○○ to meet the requirements of exemption from the tax collection. The plaintiff met the grounds for exemption from the tax collection stipulated in the special law. The defendant determined that the plaintiff's failure to transfer the technology of producing the above OOOOOOG diesel engine (high technology) to Da○○○○○, thereby hindering the production of the product accompanying the above high technology in Korea. The defendant decided that "realally, the product applying the above high technology is domestically being manufactured". Thus, this determination is based on erroneous statutory interpretation and misapprehension of legal principles since it violated the principle of no taxation without the law, and it is based on the determination of whether the ○○ engine satisfies the requirements of exemption from the tax collection. In addition, it is based on the determination of whether the ○○ engine satisfies the requirements of exemption from the tax collection, such as whether the technology transfer has been completed and the purpose of exemption from the tax exemption has been achieved, but it is based on misconception of facts without such verification.

1) Article 121-2(1)1 and Article 121-3(1) of the former Act on Special Cases Concerning the Contents of related Acts and subordinate statutes provide that capital goods required for foreign investment projects which involve high technology essential to enhance international competitiveness of domestic industry shall be exempted from customs duties, value-added taxes, etc., and Article 121-5(2)3 of the same Act and Article 116-8(1)3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18408, Jun. 5, 2004; hereinafter the same) provide that where a foreign investor transfers his/her stocks owned by the Republic of Korea under the special Acts and subordinate statutes within three years from the date of exemption from customs duties, etc., customs duties shall be collected again, and where it is deemed that a foreign investor has made an investment in the Republic of Korea with high technology under Article 121-2(1)1 and Article 121-3(1) of the same Act, the aforementioned exemption from customs duties shall not be imposed on the corporation.

B) The subject of the instant “high-level technology” is an electric mechanism to determine whether the ○○ engine satisfies the requirements for exemption from tax collection. In light of the content of the technology introduction agreement entered into between the ○○ engine and the ○○○○○○○ in order to determine whether the ○ engine satisfies the requirements for exemption from tax collection, and in light of the content of the technology introduction agreement entered into between the ○○ engine and the ○○○○○○, and the intent of the ○○ engine’s application for exemption from tax payment, it is reasonable to deem that the “high-level technology” which was the object of exemption from tax on the ○○○○○ engine is the manufacture technology of the

(C) The Plaintiff’s ○○○○○○○○○ 00 Engine, which had been 0 or less 0 ○○ 2 ○○○○○ 2, which had been 6,72,16,23,29, 30, 41, 45, and 1 and 5 2, respectively, had been 0 or more different technology transfer technology development projects conducted on the 1st 2nd 5th 2nd 6th 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 204nd 3rd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 3rd 3rd 3rd 3rd 3rd 3.

According to the above facts, the ○○ engine delivered from Da○○○○○ (hereinafter “○○”) technical data, such as technical data, such as design drawings, and snow allocation drawings, etc., sent the field technical personnel of the ○○ engine to Da○○ (hereinafter “○○”)’s local factory and research institutes, or dispatched technology personnel from Da○○○ (hereinafter “○○”) to Da○○ (hereinafter “○○”). In fact, the ○○ engine produced 75 unit files from ○○○○ (hereinafter “○○○”) engine and measured exhaust gas and exhaust gas. As such, it is reasonable to deem that the ○ engine was transferred the ○○ level of O○○○ (hereinafter “○○”) level on May 12, 2004 as the result of the measurement of exhaust gas and exhaust gas.

D) The principle of strict interpretation derived from the principle of tax law and the principle of fair taxation on whether a product accompanied by “high technology” constitutes a case where there is no hindrance to the production by itself in the Republic of Korea, and the principle of strict interpretation derived from the principle of strict interpretation is applied not only to cases meeting taxation requirements, but also to cases meeting the requirements of non-taxation and tax reduction and exemption. Therefore, it is not allowed to expand or analogically interpret the requirements of non-taxation or tax exemption and exemption as favorable to taxpayers without reasonable grounds (see Supreme Court Decision 2050Du15021, Jul

In full view of the purport of arguments in the statement No. 46 evidence No. 1, 2, 12, 18 through 24 above, the Plaintiff (○○ Engine) cannot meet the exhaust gas standards strengthened on June 19, 2004, after the termination of the instant joint venture agreement, and requested the Ministry of Environment to postpone implementation of the Decree to apply the enhanced permissible emission levels, which are expected to be implemented from July 1 of the same year, for a period of six months. The Ministry of Environment, upon such request, has to minimize impacts on the domestic automobile industry and regional economy in accordance with the permissible emission levels strengthened by technology development difficulties, and to reduce inconvenience of consumers who wish to purchase large-scale engines using transit, and to extend the application of the permissible emission levels of exhaust gas fixed at the ○○○ 20th anniversary of the date of implementation of the instant amendment to the Clean Air Conservation Act, and the Plaintiff, within two months after the enforcement of the amended Enforcement Rule, shall not extend the permissible emission levels of the Plaintiff’s new engine to the existing 20th anniversary of the date of the amendment.

According to the above facts, it is reasonable to view that the Plaintiff is unable to produce (Engines) products (Engines) applying the technology of manufacturing O○○○○ franchise engines, a high-level technology transferred from Da○○○○○○ after the termination of the instant joint venture agreement and technology transfer agreement, as “the Plaintiff is unable to produce them on its own in the Republic of Korea.” Even if part of the technology acquired in the process of adopting O○○○○○○ intent engine manufacture technology from Da○○○○○○ assist the Plaintiff’s independent engine development, it cannot be said that “the case where it does not interfere with the domestic production of products involving high-level technology,” which is the reason for exemption from tax collection in accordance with the above strict interpretation doctrine, is not “the case where it does not interfere with the domestic production of products involving high-level technology,” which is the reason for exemption from tax collection in accordance with the above strict interpretation doctrine. Furthermore, according to the above evidence, the Plaintiff’s ○○ engine completed the ○○ plant with the benefits of customs duties, etc., and it did not meet the original purpose of production for 275 years.

E) Accordingly, even though the Plaintiff acquired the high technology of this case from Da○○, it is reasonable to view that it does not constitute “cases where it does not interfere with the domestic production of products accompanying high technology by itself,” and ultimately, it did not achieve the purpose of tax reduction and exemption.

2) In determining whether the Defendant violated the principle of no taxation without representation or not, it was based on the “whether the pertinent product is actually being manufactured in Korea” on the basis of the legal interpretation of the principle of no taxation without representation or exemption. The instant disposition is based on the decision of the Minister of Finance and Economy on March 7, 2005, and the said decision of the Minister of Finance and Economy is based on the decision of non-taxation or exemption of taxes on ○○ engine. The above decision of the Minister of Finance and Economy is based on the agreement with the Minister of Commerce, Industry and Energy under Article 121-5(5)4 of the former Special Act and Article 116-10(2)1 of the Enforcement Decree of the same Act, which provides that ○ engine did not meet the requirements of tax exemption under the above provision. However, as seen earlier, the Minister of Commerce, Industry and Energy introduced a facility for the production of ○○ engine with the first Da○ 3 engine at the time of consultation with the Minister of Commerce, Industry and Energy, which does not meet the requirements of no taxation exemption or exemption.

Rather, comprehensively taking account of evidence No. 1, No. 46-2, evidence No. 15, and the purport of the entire arguments and arguments, ○○○ engine is to pay 2,880,000 tons in return for receiving product technical documents (design drawings, etc.) from Da○○○, and Doesc Roc Roc Roc Roc Roc Roc Roc Roc Roc 34,00 per 34,00 engines in return for rights to produce and distribute Doc 1, 689,000 square meters per 1,320, or 2400, or 15,0000,000 won in return for receiving support for product production activities. According to the agreement on technology introduction concluded between the Plaintiff and ○○ 1,000,000,000 won in total, which would not interfere with the purpose of manufacturing and termination of the contract, the Plaintiff’s agreement on the manufacture and termination of the contract can be concluded with the agreement.

3) Article 121-5(5)4 of the Act on Special Cases concerning the Regulation of the Ministry of Commerce, Industry and Energy and Article 116-10(2)1 of the Enforcement Decree of the same Act provides only the duty of consultation with the competent Minister in determining whether to exempt tax collection, and does not provide any separate duty of investigation for this purpose, and comprehensively taking account of the overall purport of arguments on evidence Nos. 3 and 4, the Minister of Finance and Economy made a decision not to grant tax exemption for ○○ engine after two consultations with the Minister of Commerce, Industry and Energy, and the Minister of Commerce, Industry and Energy, the competent Minister, even though he did not conduct on-site investigations, has submitted documents submitted by ○○ engine, a series of processes conducted from the establishment of ○○ engine until the termination of the contract with ○○○○○○, and there are no grounds to assert that the instant disposition was unlawful.

4) In conclusion, Article 121-5 (5) 4 of the former Special Assistance Act and Article 116-10 (2) 1 of the Enforcement Decree of the same Act provide that "where it is deemed that the purpose of tax reduction and exemption has been achieved, a foreign investor who invested in a business involving high technology under Article 121-2 (1) 1 of the former Special Assistance Act transfers the owned stocks, etc. to a national or corporation of the Republic of Korea, and where it is deemed that the Minister of Finance and Economy has no intention to produce products manufactured in a business involving high technology after consultation with the competent Minister, the reduced and exempted tax amount may not be collected." The decision to exempt tax reduction and exemption under the former Special Assistance Act provides that the discretionary act should be done by taking into account the purpose of the tax reduction and exemption system to introduce high technology from an advanced foreign company to strengthen national competitiveness and the necessity of public interest such as fair taxation, etc. In light of the public interest discretion of the administrative agency, the court has no error of law by misapprehending the legal principles as to the plaintiff's discretion or determination of 201.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and it is so decided as per Disposition by the plaintiff's appeal.