Seoul Central District Court-2016-Gohap-53098 ( March 28, 2017)

A series of acts such as prior notice of fines for negligence in violation of cash receipt issuance and payment of fines for negligence shall not be unjust unless it is deemed that it is void as a matter of course.

Since there are many circumstances leading to misunderstanding as joint business operators, even if there are serious defects in a series of acts such as prior notice of fines for negligence and voluntary payment by the applicant, such defects cannot be objectively determined and void.

Participation in the violation of public order by many people of Article 12 (1) of the Regulation of Violations of Public Order

Article 15 (1) of the Punishment of Tax Evaders Act and Violation of Cash Receipt Issuing Obligation

Seoul High Court 2017Na202128

AA

Korea

January 16, 2018

March 6, 2018

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 pay to the plaintiff the amount of x members and the amount of 5% interest per annum from February 16, 2016 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

This Court's explanation is the same as the entry of 1. Basic Facts in the reasoning of the judgment of the court of first instance, except for the addition of the "prior notice" in 13th of the judgment of the court of first instance ("prior notice of this case") to the "prior notice of this case" in 3th of the judgment of the court of first instance, and therefore it is acceptable in accordance with Article 420 of the Civil Procedure

2. The plaintiff's assertion

The instant administrative fine is imposed on the business entity of the instant hospital, and the Plaintiff is not a joint business entity of the instant hospital, and there is no ground to impose the instant administrative fine on the Plaintiff. Accordingly, since the Plaintiff’s administrative fine Xx won paid upon the prior notice of this case was unjust enrichment by the Defendant, the Defendant is obligated to pay to the Plaintiff the interest or delay damages calculated at the rate of 5% per annum from February 16, 2016 to the date of delivery of the duplicate of the instant complaint, which was known to the Defendant that the Plaintiff was unjust enrichment, and 15% per annum from the next day to the date of complete payment.

3. Determination on the defense prior to the merits

In light of the purport that the defendant of the Regulation of Violations of Public Order (hereinafter referred to as the "Act") prescribes the procedure of raising an objection by the violator and trial of fines for negligence by the court, and has the system of reducing fines for negligence, the defendant asserts that if reduced fines for negligence are voluntarily paid, it shall not be argued as civil litigation.

However, considering the procedure of raising an objection under the law and the procedure of filing an appeal for a trial on a fine for negligence by the court, and the procedure of filing an appeal for a request for return of unjust enrichment under the civil law is a separate procedure, and the law does not have a separate procedure for filing an appeal for the case of voluntary payment of a reduced fine for negligence, the voluntary payment of a fine for negligence without going through the procedure for filing an objection, etc. as provided by the law cannot be deemed to be unlawful even

4. Judgment on the merits

A. Criteria for determination

1) The Plaintiff asserts that an administrative agency’s imposition of a fine for negligence under Article 16(1) of the Act is not an administrative disposition, and thus fair, so if it is found that there is no ground to impose a fine for negligence, the administrative agency should return the fine for negligence received to the offender as unjust enrichment regardless of whether the defect was significant and obvious.

2) Prior notice of imposition of a fine for negligence, which is given by an administrative agency pursuant to Article 16(1) of the Act, does not constitute an administrative act in which fairness is recognized, given that prior notice of imposition of a fine for negligence by an administrative agency is not an act that has the effect of imposing a fine for negligence directly by notifying the violator of the order and providing him/her an opportunity to present his/her opinion.

However, in full view of the following circumstances, when a public order violator voluntarily pays an administrative fine in accordance with the prior notice of an administrative agency’s administrative fine, and the procedure of imposing and collecting the administrative fine is terminated pursuant to Article 18(2) of the Act, the duty to pay the administrative fine is specifically determined and implemented through a series of acts such as prior notice of the administrative agency’s imposition of the administrative fine and payment of the administrative fine following such act by the person who violated the order, and the administrative agency holds the amount of the administrative fine on the basis thereof. It is reasonable to deem that the administrative fine received by the administrative

① As alleged by the Plaintiff, if a public order violator can seek the return of a fine for negligence, which was already paid by a civil suit, even after he/she voluntarily pays the fine for negligence, this would be the same as a new dispute from the beginning about the obligation to pay the fine for negligence, and the imposition and collection of the voluntarily paid fine for negligence are not different from that of a final and conclusive penalty until the expiration of the period for prescription that the public order violator may bring a civil lawsuit.

② However, the same result as the above ① if the fine for negligence was reduced, it violates the pertinent order.

Article 18 (2) of the Act provides that "the imposition and collection procedure for fines for negligence shall be terminated," and if reduced fines for negligence is voluntarily paid, it violates the purpose of Article 18 (2) of the Act to treat the reduced fines for negligence as in fact

③ Furthermore, taking into account the fact that the procedures for imposing and collecting fines for negligence are not much completed by voluntary payments in cases involving multiple violations of public order, such as fines for negligence due to violation of road traffic laws, the results are likely to cause excessive instability in the administration of fines for negligence, as well as that of the law seeking the smooth administration of fines for negligence by setting the period for raising an objection within a short period.

(4) In addition, the imposition of a fine for negligence is imposed because the administrative agency fails to pay it voluntarily.

A person who has received an order may raise an objection only within 60 days from the date of receipt of the notice of imposition of a fine for negligence, and only if there is a significant and obvious defect in a civil procedure, he/she may receive a refund of the fine for negligence already paid. However, if the plaintiff's above assertion is made, a person who has voluntarily paid a reduced fine for negligence can seek a return of the fine for negligence already paid for a prolonged period of five years, which is the period of prescription of a civil lawsuit against the defendant, and is contrary to the principle of equity.

⑤ Unlike the cases where a person files a voluntary report to avoid sanctions such as additional dues due to a failure to file a report, in the case of a fine for negligence, even if a person does not voluntarily pay a fine for negligence according to a prior notice given by an administrative agency, the person liable to pay the fine for negligence is determined according to the amount, and is not obligated to increase the liability for the delay of payment. Rather, the person liable to pay the fine for negligence by filing an objection against the disposition imposing the fine for negligence, which is taken after the prior notice, can make the person liable to pay the fine for negligence invalid (Article 20 of the Act).

6. Although the Act does not provide a separate procedure for objection against voluntary payment of a reduced administrative fine, the reason why the Act provides for the mitigation system of an administrative fine is to promote convenience in the imposition and collection of an administrative fine by reducing the amount of an administrative fine by taking into account that it requires considerable expenses and efforts to impose and collect an administrative fine until the person who violates the order.

B. Application of the instant case

1) In full view of the following circumstances that may be recognized by the respective statements in Gap evidence 1, Eul evidence 1, Eul evidence 2-2, Eul evidence 3-9 and Eul evidence 2-2, and the purport of the entire pleadings, there are many circumstances to mislead the plaintiff as joint business operators of the hospital of this case. Thus, even if the plaintiff was not a joint business operator of the hospital of this case, even if there is a serious defect in the prior notice of this case and a series of acts of the plaintiff's voluntary payment based thereon, it cannot be readily concluded that the defect is objectively obvious, and therefore, the series of acts cannot be viewed as null and void.

① Upon the request of BB, the Plaintiff assumed office as the representative director Aa, and required the Plaintiff to pay the opening cost of the instant hospital from the corporate account of the said company. As the representative director of the said company, the Plaintiff concluded a lease agreement on the instant hospital building and remitted the deposit to the lessor.

② The Plaintiff opened three financial accounts, including a single bank account in the name of a corporation A and a bank account in the name of the Plaintiff, with the aim of allowing the Plaintiff to use the instant hospital’s operating account.

③ The instant hospital’s operating profit distribution contract was prepared between the Plaintiff, a representative director of a corporation Aa and CCC. The contract contains the content that the Plaintiff distributes to CCC a profit equivalent to 30% of the monthly operating profit of the instant hospital and notifies the CCC of the monthly operating account.

④ In early 2011, the Plaintiff prepared a business agreement on the operation of the instant hospital with DD, a mother of BB, as the head of BB.

⑤ According to the data on the settlement of profits of the instant hospital, the Plaintiff received 35% of the profits of the said hospital from November 2010 to January 201, 201, and entered that 40% of the profits of the said hospital was distributed from February 2011 to December 2011. In fact, the Plaintiff received part of the profits of the instant hospital every month during the remainder of the period excluding from June 201 and August 201. From around May 2011, the Plaintiff received some of the profits of the instant hospital every month during the remainder of the period excluding from June 2011 and around August 201.

④ During the tax investigation process, BB stated that “the Plaintiff invested KRW 300 million in the instant hospital, managed revenues and expenditures from the opening date to March 2012, 2012, and that “a loan certificate drawn up between the Plaintiff and the Plaintiff was drawn up on September 2012 at the time of criminal trial.”

7) EE, who served as a nurse of the instant hospital, has stated that “the Plaintiff is operating the instant hospital by investing KRW 300 million in the relevant criminal case, and KRW 100 million, and that “The Plaintiff is aware that 40%, BB is 30%, CCC is 15%, and FF is 15% equity interest.”

④ From the opening date of the instant hospital to May 2012, the Plaintiff, while entering the instant hospital from the opening date to around May, 2012, performed some of the receipt and disbursement duties, or took overall control of ancillary business, such as main and material management.

2) The Plaintiff asserts that the person subject to the instant advance notice shall be the person subject to the administrative fine and the location of the instant hospital shall be indicated respectively in the column of the person subject to the administrative fine. The instant advance notice is null and void since it did not meet the formal requirements, and therefore, the Plaintiff’s payment of the administrative fine was made without the prior notice on imposition of the administrative fine.

However, despite the statement of the person subject to the above prior notice, the Plaintiff was aware that the person subject to the prior notice of this case was about the person subject to the prior notice of this case and was paid a fine for negligence directly. Thus, even though it was somewhat unclear in the form of the prior notice of this case, the Plaintiff’s voluntary payment of the fine for negligence based on the prior notice of this case or the subsequent notice cannot be deemed to

3) The Plaintiff asserts that since the law does not stipulate the joint and several liability for fines for negligence, the Defendant’s designation of the Plaintiff as a joint and several payment obligor and the payment of fines for negligence is an act without any legal basis and thus void.

Article 15 (1) of the Punishment of Tax Evaders Act and Article 162-3 (4) of the Income Tax Act, which are the basis of the fine for negligence of this case, stipulate "business operators" as persons responsible for issuing cash receipts and persons subject to the imposition of fines for negligence. The prior notice of this case is based on the plaintiff's joint business operator status of the hospital of this case, and Article 12 (1) of the Act provides that "if two or more persons participate in the violation of public order, each person shall be deemed to have committed the violation of public order." Thus, the prior notice of this case or the payment of

4) Ultimately, insofar as the prior notice of the instant case and a series of acts pertaining to the Plaintiff’s payment of the fine for negligence cannot be deemed as null and void, the Defendant’s possession of the fine for negligence, which the Defendant received as a performance of the obligation to pay the fine for negligence specifically determined by the series of acts, does not constitute unjust enrichment. Therefore, the Plaintiff’

5. Conclusion

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed. It is so decided as per Disposition.