Busan District Court Decision 2011Guhap816 (No. 11, 2011)

Cho High Court Decision 2012 Deputy0749 ( October 27, 2012)

It does not meet the legal requirements that constitute a ground for retrial and thus is illegal for retrial.

There is no evidence to acknowledge that there was a judgment or trial, etc. under Article 451(2) of the Civil Procedure Act regarding the act of obstructing the submission of a means of offence or defense that may affect a judgment, or forging or altering the contract of this case. Thus, a lawsuit for retrial unlawful by failing to meet the requirements for a ground for retrial, such as where the same ground as that of the grounds for

2012Revocation of revocation of disposition of global income tax notice

Plaintiff (Re-Appellant), Appellant and Appellant

KimAAAA

Defendant (Re-Appellant), appellant and appellee

Head of North Busan District Tax Office

Busan District Court Decision 2011Guhap816 Decided August 11, 2011

April 5, 2013

May 3, 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

1. Purport of claim

On December 1, 2009, the imposition of value-added tax of 000 won for the second period of 2006 against the Plaintiff (hereinafter “Plaintiff”) was revoked on December 1, 2009 by the Defendant (hereinafter “Defendant”) and the Defendant’s imposition of 000 won for global income tax for the year 2006 against the Plaintiff on September 1, 2010.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The imposition of global income tax of KRW 000 on September 1, 2010 against the plaintiff on September 1, 201 shall be revoked.

B. Defendant

In the judgment of the first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Purport of request for retrial;

The part concerning imposition of global income tax of 000 won in the judgment subject to review shall be revoked.

1. Final and conclusive judgments subject to retrial;

The following facts may be recognized by a decision on the records subject to review and the judgment subject to review, where there is no dispute between the parties or where it is subject to review:

A. On April 19, 2006, Busan Regional Tax Office entered into a contract with the Plaintiff on the facility works of Changwon-si BB Do Co., Ltd. (hereinafter “the construction of this case”) in Changwon-si, and completed the construction of this case on August 20, 2006, but did not issue a tax invoice and notified the Defendant of the contract as taxation data.

B. On December 1, 2009, the Defendant notified the Plaintiff of the imposition decision of KRW 000,000 of the value-added tax for the second period of value-added tax (hereinafter “instant imposition disposition”). On September 1, 2010, the Defendant notified the imposition decision of KRW 000,000 of the global income tax for the tax year 2006 (hereinafter “instant imposition disposition”), and when the instant imposition disposition of value-added tax and the global income tax are also referred to as “each of the instant dispositions”).

C. On February 23, 2009, the Plaintiff rejected the Plaintiff’s lawsuit seeking revocation of the instant disposition as the Busan District Court 201Guhap816 on August 18, 2009, and the Busan District Court rendered a judgment to revoke the instant disposition (hereinafter “the first instance judgment”) that rejected the Plaintiff’s lawsuit seeking revocation of the disposition of global income tax assessment, and the Plaintiff rendered a judgment to revoke the instant disposition of global income tax assessment on August 18, 2009 (hereinafter “the first instance judgment”).

D. The Plaintiff and the Defendant appealed against each part of the judgment of the first instance court, and the Defendant revoked ex officio the disposition imposing the value-added tax on the Plaintiff on April 12, 2012 where the appellate court is pending.

E. On May 16, 2012, the Busan High Court rendered a decision to revoke the part of the Defendant’s failure (the part on which the revocation of the disposition imposing the value-added tax in this case) and dismiss the lawsuit corresponding to the revoked part, and to dismiss the Plaintiff’s appeal regarding the disposition imposing the global income tax in this case (hereinafter “decision subject to review”).

F. On September 27, 2012, the Supreme Court rendered a judgment dismissing the Plaintiff’s appeal by 2012du12761 (hereinafter referred to as “the final judgment”) on September 27, 2012, and the judgment subject to review became final and conclusive upon being served on the Plaintiff on October 4, 2012.

2. Summary of the plaintiff's assertion

The Plaintiff asserts to the following purport and seeks revocation of the part concerning the disposition imposing global income tax of this case among the judgment subject to review.

A. Referral committed an act such as entering into a contract on the instant construction in the Plaintiff’s name, and the Plaintiff was obstructed from submitting a method of attack or defense that may affect the judgment subject to review due to that act, which constitutes grounds for retrial under Article 451(1)5 of the Civil Procedure Act.

B. On April 19, 2006, as evidence of the judgment subject to review, the contract for BBS or facility works (hereinafter referred to as “the contract document of this case”) was forged or modified, which constitutes grounds for retrial under Article 451(1)6 of the Civil Procedure Act.

C. A witness witness testimony to the effect that "AD and ICC established the contract of this case at the time of the plaintiff's sunset," and this constitutes grounds for retrial under Article 451 (1) 7 of the Civil Procedure Act.

D. The defendant revoked the disposition of value-added tax of this case against the plaintiff ex officio, and this constitutes grounds for retrial under Article 451(1)8 of the Civil Procedure Act.

3. The judgment of this Court

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

1) Parts concerning grounds for retrial under Article 451(1)5, 6, and 7 of the Civil Procedure Act

When a confession has been made, or a document that forms the evidence of the judgment has been forged or altered, due to another person's act subject to criminal punishment, that may affect the judgment, and when a witness's false statement has become the evidence of the judgment, a lawsuit for retrial may be brought against the final judgment established (Article 8 (2) of the Administrative Litigation Act, Article 451 (1) 5, 6, and 7 of the Civil Procedure Act). However, in each of the above cases, a lawsuit for retrial may be brought only when a judgment of conviction or a judgment of imposition of a fine for negligence becomes final or when it is impossible to render a final judgment of conviction or final judgment of imposition of a fine for negligence for reasons other than lack of evidence (Article 451 (2) of the Civil Procedure Act), Article 451 (1) 5 of the Civil Procedure Act, Article 6 and 77 of the same Act, and Article 451 (2) of the same Act, and Article 451 (2) of the same Act, which provides for a new trial, have no effect on the grounds for retrial, nor should it be rejected (see Article 4515 of the new judgment, and 5464.

2) Part on the grounds for retrial under Article 451(1) Subparagraph 8 of the Civil Procedure Act

According to the proviso of Article 451(1) of the Civil Procedure Act as applied mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, the grounds for retrial cannot be brought again on the ground that the parties asserted or did not assert it. Thus, a lawsuit for retrial may not be brought again on the ground that it falls under any of the subparagraphs of Article 451(1) of the Civil Procedure Act, and where the parties already asserted or did not know it in the appellate trial as to the judgment subject to retrial, it is alleged that it does not constitute the grounds for retrial, and the lawsuit for retrial is also unlawful (see, e.g., Supreme Court Decisions 91Da29057, Nov. 12, 1991; 93Da39553, Nov. 9, 199). However, according to the records, the Plaintiff’s ground for retrial as one of the grounds for appeal No. 1065, Jun. 22, 2012; and, as one of the grounds for appeal No. 15, the Plaintiff’s. 14 of this case’s.

B. Whether there is a ground for retrial

As seen earlier, the Plaintiff asserts that: (a) as seen earlier, DaD entered into a contract on the instant construction in the Plaintiff’s name; (b) DaD forged or alters the instant contract; and (c) DaD gave testimony to the effect that DaD entered into a contract with MaCC by preparing the instant contract; and (d) the Defendant ex officio cancelled the instant disposition imposing the global income tax on the Plaintiff. However, the summary of the instant global income tax in the judgment subject to review is that “the Plaintiff’s lawsuit seeking revocation of the instant disposition imposing the global income tax is unlawful and dismissed as the Plaintiff did not go through the pre-trial procedure, such as a request for review or a request for trial as prescribed by the Framework Act on National Taxes, on the disposition imposing the global income tax,” and the aforementioned circumstances asserted by the Plaintiff do not relate to the Plaintiff’s failure to comply with the pre-trial procedure, such as a request for review or a request for trial, etc. regarding the said disposition imposing the global income tax. Therefore, even if the Plaintiff acknowledges the circumstances asserted by the Plaintiff, any of the aforementioned circumstances do not affect the text of the judgment subject to review.

4. Conclusion

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