Whether the grounds for retrial under Article 422 (1) 8 of the Civil Procedure Act is applicable to a revocation of permission for a petroleum sales business under a final and conclusive judgment that the imposition of special consumption tax, etc. against the manufacturer or seller of similar insignia is legitimate, where the manufacture or sale of similar insignia is not subject to a coordination order issued by the chief of power resources department (negative)

Article 422(1) Subparagraph 8 of the Civil Procedure Act provides that “When the judgment, etc. of civil and criminal persons, which forms the basis of the judgment, changes by a different judgment or administrative disposition” refers to cases where the final judgment is legally binding, or the judgment, etc., which is the basis of fact-finding at the final judgment, has been changed by another judgment, etc. thereafter, the judgment subject to a retrial of this case is legitimate to impose special consumption tax and defense tax on the Plaintiff for the manufacture and sale of similar insignias, and the subsequent judgment to revoke the revocation of the permission for petroleum retail business against the Plaintiff is not subject to the order of coordination by the chief of power resources, if the judgment to revoke the permission for the manufacture and sale of similar petroleum does not constitute the basis of the judgment subject to a retrial of this case.

Article 422(1)8 of the Civil Procedure Act

[Judgment of the court below]

The Head of the Maternization Tax Office

Seoul High Court Decision 89Re-Gu16 delivered on November 15, 1989

The appeal is dismissed.

The costs of appeal shall be assessed against the plaintiff (appellant).

We examine the grounds of appeal.

When the judgment, etc., which forms the basis for a retrial under Article 422(1)8 of the Civil Procedure Act, changes by a different judgment or administrative disposition, refers to a case where the final judgment is legally binding, or a judgment, etc., which is a basis for fact-finding at the final judgment, has been changed by another judgment, etc. thereafter. As determined by the court below, the judgment subject to a retrial of this case is legitimate to impose special consumption tax and defense tax on the manufacture and sale of similar insignias, and the subsequent judgment to revoke the permission for the revocation of the permission for the petroleum selling business against the plaintiff is a case where the manufacture and sale of similar petroleum products are not subject to the order of coordination by the chief of power resources division, the revocation judgment to revoke the permission for the above petroleum selling business cannot be deemed the basis for the judgment subject to a retrial of this case.

The judgment of the court below to the same purport is just and there is no violation of law as otherwise pointed out.

In addition, when examining the judgment subject to a retrial along with the records, it is evident that the defendant is subject to the special consumption tax of this case, because it is clear that the defendant made and sold similar insignias 960 drums mixed with TolN et al. on the normal insignias, and the court below also judged the grounds for a retrial of this case on the premise of this determination. Thus, even though the court below did not specifically determine the plaintiff's assertion that there was a error in taxation subject to a retrial, there is no error of law

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ansan-man (Presiding Justice)