Ulsan District Court 2012 Gohap5120 ( October 17, 2013)

The public official in charge of the taxation of this case cannot be deemed to be negligent in performing his duties in breach of the objective duty of care.

Even if there is a defect in the taxation disposition of this case, it cannot be deemed that the defect is obvious, and thus, it cannot be deemed that the taxation disposition of this case is null and void as a matter of course. Furthermore, it cannot be deemed that the public official in charge of the tax disposition of this case was negligent in performing his duty in breach of objective duty of care or that the taxation disposition

Busan High Court 2013Na51513 Compensation for damages, etc.

Park AA

Republic of Korea and 1

Ulsan District Court Decision 2012 Gohap5120 Decided July 17, 2013

April 3, 2014

May 1, 2014

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

The judgment of the first instance shall be revoked. The Defendants shall pay to each Plaintiff 00,000,000 won with 5% per annum from December 21, 2009 to the service date of a duplicate of the purport of the instant claim and the cause of the instant claim, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

The following facts may be acknowledged as either a dispute between the parties or in full view of the descriptions of Gap evidence 1 to 3, Gap evidence 5, Eul evidence 3 (including each number), and the whole purport of the pleadings.

A. The defendants' taxation disposition

1) The plaintiff, who was the representative director of BB corporation (hereinafter referred to as "B corporation") and BB corporation (hereinafter referred to as "B corporation") received and used 0,000,000,000,000 won out of the sale price of each land listed in the separate sheet of real estate (hereinafter referred to as "land in this case") registered in the name of B corporation in the land development recompense for the land rearrangement cooperative from February 26, 2001 to May 3, 2001, from February 26, 2001.

2) After selling the instant land owned by BB for D Integrated Construction in 199, the head of ○○ Tax Office deemed that the Plaintiff, a representative director of BB, used 00,000,000 won out of the sales price for personal use. On March 2, 2007, the Plaintiff, as the Plaintiff, notified the Plaintiff of the change in the amount of income and notified the Plaintiff of the change in the taxation data. On May 15, 2007, the head of ○ Tax Office corrected the Plaintiff’s global income tax for 2001 as KRW 0,000 (including additional tax) based on the notice of change in the amount of income, and notified the Plaintiff of the payment notice of global income tax for the remainder after deducting the already paid tax amount of KRW 0,000,000,000 from the resident tax amount of KRW 00,000,000 in lieu of the head of Gun Metropolitan City, and notified the Plaintiff of the payment notice of global income tax (hereinafter collectively referred to as “tax assessment”).

B. Attachment Disposition by the Defendants

1) On February 15, 2007, on the ground that the Plaintiff failed to pay the comprehensive income tax attributed to year 2001, the head of △△ District Tax Office attached each of the Plaintiff’s deposit claims at the Taesan River Branch’s NAC and the Plaintiff’s deposit claims at the Ulsan Bank’s New Bank on November 21, 2008, and collected KRW 00,000,000 from the said deposit claims, and seized KRW 27,300, which is the Plaintiff’s equity interest among the total issued shares of 70,000 on September 6, 2007.

2) On April 14, 2008, on the ground that the Plaintiff failed to pay the resident tax for the year 2001, the head of Gun/Gu attached the Plaintiff’s deposit claim to the Ulsan District District Office (hereinafter “instant attachment disposition” in both attachment disposition by the head of Gun/Gu and attachment disposition by the head of Gun/Gu in the Seogu Metropolitan City).

C. Termination of the instant taxation disposition revocation lawsuit

1) On March 20, 2008, the Plaintiff filed a lawsuit against the director of the tax office of Ulsan District Court and the head of the Si/Gun/Gu in the Seocho-gu Seoul Metropolitan City to revoke the instant taxation disposition. The said court dismissed the Plaintiff’s claim on November 19, 2008 on the ground that the instant taxation disposition was lawful.

2) Accordingly, the Plaintiff appealed as Busan High Court 2008Nu64555, and the above court determined that the tax disposition of this case was unlawful on the ground that the pertinent land was an asset in the name of BB enterprise, and that the pertinent land was entered in the account books of BB enterprise in the amount of KRW 0,000,000,000,000, among the price, and that it was reverted to the Plaintiff, it cannot be deemed to be the outflow of the BB enterprise’s assets, and that there was no evidence to prove that the tax disposition of this case was reverted to the Plaintiff, and that there was no other evidence to prove that the tax disposition of this case was unlawful on the ground that the tax disposition of this case was unlawful.

3) Although the head of △△ District Tax Office and the head of △△ Metropolitan City appealed, the Supreme Court dismissed the appeal on October 28, 2010 as the head of 2012du13081, thereby the said appellate judgment became final and conclusive.

2. The plaintiff's assertion

A. The Defendants’ instant taxation disposition clearly deviates from the limit of the substance over form prescribed by the Framework Act on National Taxes, and it violates the essential contents of property rights guaranteed by Article 23(1) of the Constitution, and thus, constitutes an unlawful administrative disposition that is void as it is unlawful. In the case of a disposition that is void as a matter of course, the Defendants should compensate the Plaintiff for the Plaintiff’s loss due to the instant taxation disposition.

B. As the contents of a disposition of seizure against a third party, who is not a taxpayer, cannot be legally realized, if the execution creditor has become final and conclusive after the execution of a protective disposition, such as provisional seizure or provisional disposition, then the execution creditor's intention and negligence is presumed to have been presumed to have been presumed to have been committed against the debtor due to the execution of the protective disposition, and the execution creditor shall compensate the plaintiff for the damages incurred to the debtor due to the execution of the protective disposition of this case.

C. The Plaintiff suffered a loss equivalent to KRW 000,000,000 due to the instant taxation and the instant attachment disposition, including the credit card use price, bank transaction price, various commercial transactions price, and various authorization and permission price, and thus, the Defendants should pay each Plaintiff the amount of KRW 00,000,000 and the delayed payment damages.

3. Determination

A. Determination on the instant taxation disposition

1) Even if a certain administrative disposition is revoked in an appeal litigation after it is unlawful and therefore, it cannot be determined that the pertinent administrative disposition constitutes a tort by a public official’s intentional or negligent act. However, in a case where the public official in charge of such administrative disposition’s general public official’s duty of care is recognized to have lost objective legitimacy, it is reasonable to deem that the public official satisfied the requirements for State compensation under Article 2 of the State Compensation Act. Whether the administrative disposition has lost objective legitimacy should be determined by taking into account various circumstances, such as the form and purpose of the administrative disposition, the victim’s involvement and degree of involvement, the type of infringed benefit and degree of damage, etc., and by examining whether there is a substantial reason to impose the State or local government a liability for compensating for damage (see, e.g., Supreme Court Decision 2008Da30703, Jan. 27, 2011).

On the other hand, it is insufficient to say that there is an illegality in the disposition in order to make the taxation null and void as a matter of course, and the defect is objectively and objectively in violation of the important laws and regulations, and in determining whether the defect is significant and obvious, it is necessary to reasonably consider the purpose, meaning, function, etc. of the laws and regulations on the basis of the taxation in question as well as the specificity of the specific case itself at the same time. In addition, a taxation conducted by a person who does not have any legal relations or factual relations which are subject to taxation in question should be deemed to be serious and obvious, but if there are objective reasons to believe that it is subject to taxation in relation to any legal relations or factual relations which are not subject to taxation, if it is possible to accurately investigate the factual relations, it cannot be deemed that the illegality taxation that misleads the fact of taxation in question is null and void merely because it is not clear even if the defect is serious (see, e.g., Supreme Court Decision 200Da24986, Jul. 10, 201).

2) Therefore, in light of the following circumstances acknowledged based on the above facts: ① although the owner of the land in this case was the name of BB enterprise, the land price in this case was paid to the Plaintiff, and the Plaintiff formed the appearance of the outflow of the company by using the land in this case; ② the reason for the illegality of the taxation in this case was made according to the appearance of the Plaintiff; ② the Plaintiff is the actual owner of the land in this case who held the title trust with BB enterprise; ② the public official in charge of taxation belonging to the Defendant can not easily know the title trust relation; and this can be revealed after the accurate investigation about the factual relations; ③ the tax Tribunal and the first instance court in this case determined that the tax disposition in this case was legitimate; ④ the head of the Gu's resident tax disposition in this case based on the global income tax assessment in the Defendant Republic of Korea, even if the tax disposition in this case was defective, and thus, it cannot be deemed that the tax disposition in this case was null and void. Furthermore, it cannot be deemed that there was an objective fault in the execution of the duty in this case.

Therefore, the Plaintiff’s assertion of damages on the ground that the instant taxation disposition was unlawful is without merit.

B. Judgment on the attachment disposition of this case

① While the provisional attachment or provisional disposition is a preservative measure, it is different from the disposition for the preservation of the execution, so it cannot be understood as identical to the provisional attachment, provisional disposition and the attachment disposition of this case, as alleged by the Plaintiff. ② As seen in the judgment on the instant tax disposition, inasmuch as the public official in charge of the instant tax disposition did not violate the duty of due care and did not lose the objective legitimacy of the instant tax disposition, it would be reasonable to judge that the public official in charge of the instant tax disposition did not violate the duty of due care and did not lose the objective legitimacy of the said disposition.

Therefore, the Plaintiff’s assertion of damages on the ground that the attachment disposition of this case is unlawful is without merit.

4. Conclusion

Therefore, without having to further examine the scope of damages claimed by the plaintiff, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and the plaintiff's appeal against the defendants is dismissed as it is without merit. It is so decided as per Disposition.