(a) Court’s seat and duty to register legal matters in tax litigation;

(b) The case that reversed the judgment of the court below on the ground of illegality in failing to perform the duty of explanation and the duty of surveying legal matters;

A. Article 8 (2) of the Administrative Litigation Act provides that the provisions of the Civil Procedure Act shall apply mutatis mutandis to the administrative litigation unless otherwise provided in this Act. Thus, Article 126 of the Civil Procedure Act, which provides for the court's explanation obligation and the duty to register legal matters, shall apply mutatis mutandis to the tax litigation. Therefore, if a party claims a certain legal effect and fails to close it and has omitted part of the requisite facts, the court shall point out the omitted facts and state what the party does not present, and shall be obliged to give the party an opportunity to present his/her argument.

B. The case reversing the judgment of the court below on the ground that the plaintiffs' rejection of the non-taxation order by actively recognizing the opposing fact by the statement of criminal judgment submitted as reference material for other issues without taking such measures, on the ground that the plaintiffs' rejection of the non-taxation order by actively recognizing the opposing fact by failing to perform their duty of explanation and legal matters under Article 126 of the Civil Procedure Act due to failing to perform their duty of explanation as provided by Article 126 of the Civil Procedure Act.

(a) Article 8(2) of the Administrative Litigation Act (No. 126 of the Personnel Litigation Act); Article 8(2) of the Personnel Litigation Act (No. 183 of the Personnel Litigation Act); Article 6 subparag. 2 of the Securities Transaction Tax Act (amended by Act No. 4496 of Dec. 31, 1991); Articles 2(4) and 8(1) of the former Securities and Exchange Act

[Defendant-Appellee] Defendant 1 and 4 others (Attorneys Kim Chang-soo et al., Counsel for defendant-appellee)

The Head of Gangnam Tax Office et al.

Seoul High Court Decision 93Gu7077 delivered on February 16, 1994

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

We examine the grounds of appeal.

As to the grounds of appeal Nos. 1 and 2:

According to the reasoning of the lower judgment, the lower court rejected the Plaintiffs’ claim for refund of the above tax amount by asserting that the Plaintiff’s transfer of shares to Nonparty 1 was exempt from taxation pursuant to Article 6 subparag. 2 of the Securities Transaction Tax Act, on February 20, 192, and that, on the grounds that the Plaintiff’s transfer of shares to Nonparty 2 was not subject to taxation under Article 6 subparag. 2 of the former Securities and Exchange Act, the Plaintiff’s purchase price was 60 days after the date of 0th anniversary of the issuance of shares to Hyundai Heavy Industries Co., Ltd., Ltd., Hyundai Heavy Industries Co., Ltd., Hyundai Co., Ltd., Ltd., and Hyundai Merchant Co., Ltd., Ltd. (hereinafter Nonparty Co., Ltd.) was not subject to taxation, and that, on the grounds that the Plaintiff’s purchase of shares was not subject to taxation under Article 6 subparag. 2 of the former Securities and Exchange Act, the Plaintiff’s offering price was 10 days after the issuance of shares to the Plaintiff.

Article 8 (2) of the Administrative Litigation Act provides that the provisions of the Civil Procedure Act shall apply mutatis mutandis to the administrative litigation unless otherwise provided in this Act. Thus, Article 126 of the Civil Procedure Act, which provides for the court's explanation duty and the duty to register legal matters, shall apply mutatis mutandis to the tax litigation. Accordingly, if a party claims a certain legal effect and fails to close it and has omitted part of the requisite facts, the court shall point out the omitted facts and clarify the purport of the party's failure to present this point, and shall give the party an opportunity to present it.

However, according to the records and reasoning of the judgment below, the plaintiffs asserted non-taxation under Article 6 subparagraph 2 of the Securities Transaction Tax Act and asserted and proved only whether the act of selling the shares of this case constitutes the sale of the securities under Articles 8 (1) and 2 (4) of the former Securities and Exchange Act, and did not assert and prove that the submission and acceptance of the securities registration statement of this case should be made prior to the act of selling the shares of this case, which are one of the requirements for non-taxation, and the court below did not assert and prove that the submission and acceptance of the securities registration statement of this case should be made prior to the act of selling the shares of this case. On the other hand, the court below decided that the plaintiff's argument was made only when the plaintiffs asserted that it would be helpful to the issue of the plaintiffs' assertion, and decided that the sales of the shares of this case had already been made prior to the submission and acceptance of the securities registration statement of this case, as in this case, it rejected the plaintiffs' claim for non-taxation on the ground that it does not constitute the subject of non-taxation.

In light of the above litigation process and the trial process, the court below's rejection of the plaintiffs' non-taxation order by actively recognizing the opposing fact by the statement of criminal judgment submitted as reference material for other issues without taking such measures, in order to consider whether the submission and acceptance of the securities registration statement of this case were conducted before the act of sale of the stocks of this case was conducted, the court below should ask the plaintiffs to see the facts of this issue, point out the omission, and urge them to present their opinions. However, without taking such measures, the plaintiffs' rejection of the non-taxation order by actively recognizing the opposing fact by the statement of criminal judgment submitted as reference material for other issues is an illegal act which did not properly perform all the duty of explanation and legal matters under Article 126 of the Civil Procedure Act, and it is obvious that this affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the judgment below is reversed and the case is remanded 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.

Justices Lee Jae-soo (Presiding Justice)