Seoul High Court 2002Nu9782, 2003.06.19

Cho High Court Decision 1997Du2400 ( October 27, 1998)

action for retrial shall be brought within 30 days from the date on which the grounds therefor are known.

A retrial suit shall be instituted within 30 days from the date the parties concerned become final and conclusive, and the existence of grounds for retrial may be known by read the original copy of the judgment subject to retrial, unless special grounds exist to the contrary.

The contents of the decision shall be the same as attached.

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

and review

The decision subject to a retrial is revoked. On March 16, 1996, the disposition of imposition of KRW 30,282,970 and defense tax of KRW 6,152,570 (hereinafter “instant disposition”) for the plaintiff (hereinafter “the plaintiff”) against the plaintiff on March 16, 1996 is confirmed to be null and void (the plaintiff sought the revocation of the original disposition of this case, but changed the purport of the claim in exchange for the appellate court subject to a retrial).

1. Determination of the original judgment

The plaintiff filed a lawsuit against the defendant with the Seoul Administrative Court 2002Guhap0000, and on May 23, 2002, the judgment dismissing the lawsuit was rendered by the above court on the grounds of the lapse of the period for filing the lawsuit, etc. on May 23, 2002, and the purport of the claim was amended to seek confirmation of invalidity of the disposition of this case after the plaintiff appealed against the plaintiff. On June 19, 2003, the appellate court rendered a judgment dismissing the claim that changed in exchange as above in the appellate court on the grounds that the claim that changed in exchange as above conflicts with the res judicata effect of the Seoul High Court Decision 97Gu4199 (hereinafter referred to as the "previous Judgment") on January 29, 197. The judgment subject to a retrial was served on the plaintiff on July 9, 2003, and confirmed on July 24, 2003.

2. Summary of the Plaintiff’s assertion on grounds for retrial

The previous judgment recognized that the Plaintiff transferred the apartment household to the StateA in lieu of the payment of the land price, which is necessary expenses, but the transfer value is included in the gross income. This judgment was rendered in the previous judgment because necessary expenses could not be seen as having been imported, and the judgment subject to a retrial was rendered in favor of the Plaintiff without examining it properly. In addition, according to Article 80 of the Income Tax Act and Article 142 of the Enforcement Decree of the same Act and Article 80 of the Income Tax Act, the determination or correction of the tax base and tax amount must be completed within one year from the date of the final declaration of the tax base, but the Defendant made the instant disposition on March 16, 1996 after five or more years of the global income tax processing period, and such illegality was also limited to such judgment subject to a retrial. Accordingly, there is a ground for retrial that falls under “when the judgment was omitted on important matters that may affect the judgment” under Article 8(2) of the Administrative Litigation Act and Article 451(1)9 of the Civil Procedure

3. Determination

According to Article 456 (1) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8 (2) of the Administrative Litigation Act, a lawsuit for a retrial shall be filed within 30 days from the date when the party concerned becomes final and conclusive, and the existence of grounds for a retrial, which is omission of judgment under Article 451 (1) 9 of the Civil Procedure Act, can be known by read the original copy of the judgment subject to retrial, unless there are special grounds to the contrary. Therefore, it is reasonable to deem that the party concerned was aware of the existence of grounds for a retrial at the time of the delivery of the original copy of the judgment subject to retrial. If a judgment becomes final and conclusive later, the period for filing a lawsuit for a retrial on the grounds of omission of judgment shall be calculated from the date when the judgment subject to a retrial becomes final and conclusive (see Supreme Court Decision 92Da3930, Sept. 28, 1993). However, it is apparent that the Plaintiff has filed a lawsuit for the retrial of this case on February 8, 2010>

As to this, the Plaintiff asserts that the period of the filing of a retrial was complied with, since the Plaintiff filed a lawsuit for a retrial with this court on May 27, 1998, which was within the period of the filing of a retrial as to the judgment subject to a retrial. However, as alleged by the Plaintiff, even if the Plaintiff filed a lawsuit for a retrial under this court 98Nu91, such circumstance alone cannot be deemed to have complied with the period of the filing of a retrial, which is a lawsuit for a retrial that is a lawsuit for a retrial that is separate from it, and therefore, the Plaintiff

4. Conclusion

In order to dismiss the litigation for retrial of this case, it is so decided as per Disposition.