Daejeon District Court 2010Guhap780 ( October 14, 2010)

Cho High Court Decision 2009Hu3513 ( December 18, 2009)

Inasmuch as a lawsuit for retrial cannot be brought, it is inappropriate.

Although a certified copy of the judgment subject to a retrial was served and an appeal was dismissed, and the judgment subject to a retrial became final and conclusive, it could be asserted as the grounds of appeal, and thus, it cannot be brought a lawsuit for a retrial on the grounds of omitting the judgment in the judgment subject to a retrial.

Article 8 of the Administrative Litigation Act

Article 451 of the Civil Procedure Act

2011Revocation of disposition to impose capital gains tax

(Re-deliberation Plaintiff)

Park XX

(Defendant)

The Director of the National Tax Service

Daejeon High Court Decision 2010Nu1604 Decided December 16, 2010

Daejeon District Court Decision 2010Guhap780 Decided July 14, 2010

April 25, 2012

May 23, 2012

1. The lawsuit of this case shall be dismissed.

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

and purport of appeal, review

The judgment of the first instance is revoked. The imposition of capital gains tax of 000 won for the year 2006, which was made by the defendant (hereinafter referred to as the "defendant") against the plaintiff (hereinafter referred to as the "Plaintiff") on August 17, 2009, shall be revoked.

1. Determination of the original judgment

The following facts are clear in records:

A. On July 20, 1998, the Plaintiff acquired and held Y apartment 00-dong 0000-dong 00000 (hereinafter “instant house”) from Mado-Eup on July 20, 1998, and transferred this amount to 000 won on December 29, 2006 (hereinafter “instant transfer”).

B. As the Plaintiff did not report the transfer income tax, on August 17, 2009, the Defendant calculated the transfer value as the actual transaction value on the ground that the wife population at the time of the instant transfer falls under the designated area under Article 104-2 (2) of the former Income Tax Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same) at the time of the instant transfer, and issued a disposition of KRW 000 for the transfer income tax belonging to year 2006 against the Plaintiff (hereinafter the “instant disposition”).

C. Although the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the instant disposition (Seoul District Court 2010Guhap780, Daejeon District Court 2010), the Plaintiff appealed against the said judgment, but the judgment dismissing the appeal on December 16, 2010 was pronounced (Re-adjudication Decision). The Plaintiff filed a new appeal against the judgment subject to a retrial (Supreme Court 201Du1283, Apr. 28, 201) but the judgment subject to a retrial became final and conclusive by dismissing the final appeal on April 28, 201

2. The plaintiff's assertion

On July 19, 2003, after being designated and publicly announced as a designated area under Article 104-2 (2) of the former Income Tax Act on July 19, 2003, the location population, weather areas, and water areas were newly established due to the reorganization of administrative district on October 31, 2005. If the administrative unit area was established, the designation should be made accordingly, and if the administrative unit area was established, the location population is not designated as a designated area. Nevertheless, the judgment on retrial determined that the location population at the time of the transfer of this case constitutes a designated area at the time of the transfer of this case. Thus, the judgment on retrial constitutes grounds for retrial under Article 451 (1) 9 of the Civil Procedure Act (when the judgment on important matters that have been affected by the judgment was omitted) and thus, the judgment subject to retrial should be revoked.

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

According to Article 8 of the Administrative Litigation Act, the Civil Procedure Act shall apply mutatis mutandis to matters not specifically provided for in the Administrative Litigation Act with respect to the administrative litigation. According to the proviso of Article 451(1) of the Civil Procedure Act, the grounds for which the parties asserted by an appeal or did not have known that they did not assert by an appeal may not file a lawsuit for retrial

In light of the above provisions, a lawsuit for retrial cannot be filed against the judgment of the court of final appeal which became final and conclusive as a ground for receiving the judgment of the court of final appeal on the ground of appeal, and if the judgment of the court of final appeal is omitted, it can be known if the original copy of the judgment of the court below is served, and unless there are any special circumstances, it can be known that there was omission of judgment in the judgment in the grounds for final appeal, and barring any special circumstances, it could be asserted as the grounds for final appeal. Thus, barring any special circumstances, a lawsuit for retrial may not be brought against the judgment of the court of final appeal on the ground of final appeal regardless of whether the omission of judgment was alleged as the grounds for final appeal (see, e.g., Supreme Court Decisions 70Da2688, Mar. 30, 1971; 205Da58236, Jan. 12, 2006).

As seen earlier, the Plaintiff served an authentic copy of the judgment subject to a retrial, but the said final appeal was dismissed, and thus the judgment subject to a retrial becomes final and conclusive. In light of the above legal principles, the Plaintiff could assert this as the grounds of appeal when he was served with an authentic copy of the judgment subject to a retrial, and thus, the Plaintiff cannot file a lawsuit for a retrial on the grounds of omission in the

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it as per Disposition.