Seoul High Court 2010Na122430 (Law No. 12, 2012)

It does not go against the principle of good faith under the Civil Act to seek a refund of tax amount by filing a lawsuit for restitution of unjust enrichment in accordance with the final judgment of revocation

The Plaintiff’s filing of a claim for restitution of unjust enrichment in accordance with the purport of final and conclusive judgment in a revocation suit cannot be deemed as exercising the right against the principle of trust and good faith under the Civil Act. This is likewise true even if the tax legal relationship established in the previous lawsuit does not coincide with the substantive legal relationship, or there is room to view that the Plaintiff’s

2012Da15596 Return of Fraudulent Gains

AABE Co., Ltd.

Korea

Seoul High Court Decision 2010Na122430 Decided January 12, 2012

October 11, 2012

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, the court below found facts as stated in its reasoning, and found that the defendant imposed 00 won on the plaintiff's return of value-added tax for the second period of 2004 on the plaintiff's return of value-added tax, and barring special circumstances, the plaintiff can seek a return of the amount equivalent to the unpaid tax amount, the existence and scope of which are determined by return of unjust enrichment against the defendant (hereinafter referred to as "indemnite tax amount"). However, the plaintiff, who is the exporter, based on the facts as stated in its reasoning acknowledged by the court below, was a malicious entrepreneur with malicious intent to make illegal transactions for the purpose of tax evasion in the series of transactions conducted before the transaction of gold bullion, and thus, the plaintiff's deduction and refund of the input tax amount for the plaintiff was not known or was grossly negligent in not knowing it, and thus, it cannot be determined that the plaintiff's claim for return of the input tax amount for the purpose of tax evasion through the principle of trust and good faith and thus, it cannot be justified.

2. However, we cannot agree with the judgment of the court below.

In accordance with the court below's decision, the plaintiff can seek a refund of the amount equivalent to the key tax amount determined by the existence and scope of the tax amount in question against the defendant, and the defendant also has a duty to refund the amount equivalent to the key tax amount because it is no longer possible to dispute the existence and scope of the tax amount finalized by res judicata or binding force of the above final judgment. Thus, barring any special circumstance, the plaintiff, who is in legal status as above, cannot be viewed as exercising rights against the defendant in accordance with the purport of the final and conclusive judgment, in violation of the principle of trust and good faith under the Civil Act to seek a refund of the tax amount by the lawsuit in this case against the defendant. This is also the same even if there is room to view that the tax legal relationship established in the previous lawsuit is inconsistent with the substantive legal relationship, or that the plaintiff's assertion at the time is not acceptable under the principle of trust and good faith. In this case, in which the plaintiff did not directly pay the input tax amount to the defendant, the court below cannot be viewed as seeking a return of illegal consideration.

3. Therefore, without examining the remainder of the grounds of appeal, we reverse the judgment below and remand the case to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.