Requirements and methods for determining whether a taxation is void as a matter of course;

In a case where there is an objective reason to believe that any legal relation or fact that is not the object of an administrative disposition is the object of the disposition, and it is evident whether it is the object of the disposition or not, if it is possible to accurately investigate the facts, it cannot be said that it is apparent that it might be serious, even if the mistake is serious.

Article 741 of the Civil Act: Contents of Unjust Enrichment

2017 Return of Unjust Enrichment5295

aa

AAAA

July 12, 2017

August 9, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 24,412,884 won with 5% interest per annum from July 6, 2012 to the service date of a copy of the complaint, and 15% interest per annum from the next day to the day of complete payment.

1. As to the claim for restitution of unjust enrichment

In order to make an unjust enrichment, the tax payment or the collection of tax must be null and void as it has no legal basis at all in substance or by procedural law, or as it is significant and apparent in the defect of the tax assessment. In a case where the defect of the tax assessment is limited to the extent that the tax assessment can be revoked, unless the tax authority voluntarily revokes it or cancels it by the appeal procedure (see, e.g., Supreme Court Decision 94Da28000, Nov. 11, 1994).

In order for a taxation disposition to be null and void as a matter of course, the mere fact that there exists an illegal ground is insufficient, and the defect must be objectively obvious as it seriously violates an essential part of the relevant laws and regulations. In determining whether a serious and apparent defect exists, the purpose, meaning, function, etc. of the laws and regulations, which serve as the basis for the said taxation disposition, shall be considered teleologically as well as reasonable consideration on the specificity of the specific case itself, in addition, in a case where a taxation disposition is conducted by applying a provision of a certain Act and subordinate statute to a certain legal relationship or factual relationship, clearly stated that the legal doctrine that the relevant provision cannot be applied to such legal relationship or factual relationship, and even if there is no room for dispute over the interpretation thereof, if the relevant tax authority imposed a taxation disposition by applying the provision of the relevant Act and subordinate statutes, it is significant and obvious that the defect is serious and obvious. However, in a case where there is an objective reason to believe that a certain legal relation or factual relationship that is not subject to an administrative disposition is subject to the disposition, and it can only be clarified even if it is erroneous (see, etc.).

The main text of Article 99-3 (1) of the Restriction of Special Taxation Act provides that "the income accruing from the transfer of a newly-built house by a resident within five years from the date of acquisition shall be exempted from the tax amount equivalent to 100/100 of the transfer income tax (hereinafter referred to as "former"), and the transfer income accrued for five years from the date of acquisition of the newly-built house shall be subtracted from the income amount subject to the transfer income tax (hereinafter referred to as "after the latter") if the relevant newly-built house is transferred after five years have passed from the date of acquisition. The initial date of calculating transfer income in the interpretation of the Restriction of Special Taxation Act is "the date of acquisition of the newly-built house" because the initial date of acquisition of the newly-built house is "the date of acquisition of the newly-built house" as "the date of acquisition of the newly-built house is not expressly stipulated in the above provision, and the date of accrual of the newly-built house is different from the latter part of Article 99-3 (1) of the Act on Special Cases concerning Taxation, which the previous house was transferred within five years from the date of acquisition."

Therefore, even if the Defendant issued the instant disposition by mistake in the interpretation of the foregoing provision, in light of the following: (a) there is room for dispute over the interpretation of the foregoing provision, the Supreme Court’s ruling that did not exist any different contents from the above position of the National Tax Service; and (b) the Supreme Court rendered a final and conclusive judgment that the same content as the instant disposition was unlawful for the first time at the Supreme Court Decision 2013Du12690 Decided December 11, 2014, it is difficult to acknowledge that the mere fact alleged by the Plaintiff was an obvious defect in the instant disposition, and there is no other evidence to

Therefore, the Plaintiff’s claim for return of unjust enrichment premised on the invalidity of the instant disposition is without merit.

2. As to the State’s compensation claim

In order to hold the State liable for damages pursuant to Article 2(1) of the State Compensation Act, there must be the intention or negligence of the public official in performing his/her duties in violation of the Act and subordinate statutes as well as in causing damage to others due to the performance of duties by the public official. The public official in charge bears the burden of proving intention or negligence of the public official in charge

Meanwhile, in order for an administrative disposition to be deemed to constitute a tort due to the intention or negligence of a public official in charge, the public official in charge of the administrative disposition should be deemed to have lost objective legitimacy by neglecting his/her duty of care when considering the public official’s standard. Even if any administrative disposition can be evaluated as illegal as a result, it cannot be readily concluded that such administrative disposition constitutes a tort due to the intention or negligence of a public official immediately. Whether it has lost objective legitimacy should be determined based on whether there exists a substantial reason for imposing liability for compensating for damages on the State or a local government by taking into account various circumstances, such as the form and purpose of the administrative disposition that constitutes an infringement, the type and purpose of the administrative disposition, the degree of involvement of the victim, the degree of involvement in the infringement, and the degree of damage (see, e.g., Supreme Court Decisions 2005Da31828, May 10, 207; 2013Da206368, Nov. 14, 2013).

In full view of the circumstances examined in paragraph (1) and the overall purport of the pleadings, the evidence alone submitted by the Plaintiff is insufficient to recognize that there was an intentional or negligent act by the public official in charge, and there is no other evidence to prove this otherwise. Therefore, the Plaintiff’s claim for national compensation