(a) Refusal disposition or omission by an administrative agency which is the object of an appeal litigation;

B. The purport of Article 51(1) of the Framework Act on National Taxes

(c) Whether a taxpayer who has filed an excessive tax return has an application for refund;

(negative)

D. Whether the purport of seeking return of unjust enrichment under the public law as a party's lawsuit is included in the revocation of the rejection disposition and the confirmation of illegality of omission

A. In order for an administrative agency to make a rejection disposition or an illegal omission, which is the object of an appeal against the administrative agency, without receiving an application from a citizen, the administrative agency's rejection disposition or an illegal omission of the application, the citizen must have the right to demand the administrative agency to render an administrative action following the appeal against the administrative agency. If the administrative agency rejected the application and then rejected it and then rejected it, the administrative agency's rejection disposition or an illegal omission does not affect the applicant's right or legal interest. Thus, it cannot be viewed as a rejection disposition or an

B. In light of the definition and fairness, Article 51(1) of the Framework Act on National Taxes concerning the determination of a national tax refund provides that in a case where there is erroneous payment, the existence and scope of which have already been determined as unjust enrichment, or where there is a tax refund to be refunded under the tax law, the State declares the legal principle that it should be immediately returned to the taxpayer without filing an application for refund by the taxpayer, and it does not provide that the tax authority has an obligation to investigate and determine the amount of erroneous payment or the existence and scope of the tax refund, i.e., an administrative act affecting the taxpayer’s rights or legal interests, and therefore, the above provision does not constitute a ground provision recognizing the right to apply for the determination of a refund to the

C. Even if a taxpayer on the method of tax return filed an excessive tax return and payment based on the erroneous administrative guidance by a tax official, the taxpayer has no right to apply for the excessive tax return and return other than the method of refund after filing an application for reduction or correction in accordance with the provisions of the Framework Act on National Taxes or the provisions of the individual tax law, to recognize the excessive tax return and return to the tax authority under the provisions of Article 51(1) of the Framework Act on National Taxes or due process

D. It cannot be deemed that the purport of seeking return of unjust enrichment under public law is included in filing a claim for confirmation of illegality of a tax office's rejection disposition against a tax office's application for the determination of a refund refund and an erroneous payment of the defense tax and an application for the determination of a refund refund.

(a) Articles 2(d) and 4, and 19(b) of the Administrative Litigation Act. Articles 51(1), 26(d), 4, and 26 of the Framework Act on National Taxes

C. Supreme Court Decision 85Nu565 delivered on September 8, 1987, 86Nu619 delivered on September 22, 1987

Dong Asia Construction Industry Corporation (Attorney Lee Young-gu, Counsel for defendant-appellant)

Head of Seodaemun Tax Office

Seoul High Court Decision 86Gu919 delivered on April 9, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

With respect to No. 1:

In order for an administrative agency to make a rejection disposition or an illegal omission, which is the object of an appeal litigation, even after receiving an application from a citizen, the citizen has the right to demand the administrative agency to do so. If an administrative agency which does not accept such right and return the application without accepting it, it cannot be deemed a rejection disposition or an illegal omission because it does not affect the applicant's rights or legal interests. In addition, the citizen's above right to request a refund can be acknowledged as well as cases where there are explicit provisions in the laws and regulations. However, in light of justice and fairness, Article 51 (1) of the Framework Act on National Taxes provides that an excessive amount of tax to be refunded by a tax official shall be refunded without filing an application for refund, and therefore, it cannot be deemed that an excessive amount of tax should be immediately returned to a taxpayer under the tax law other than an erroneous tax return and payment method and an excessive amount of tax to be refunded by a tax official (see, e.g., Supreme Court Decision 80Do5810, Jun. 1, 2008).

According to the reasoning of the judgment below, the court below dismissed all of the lawsuit of this case as to the plaintiff's main and conjunctive claim without considering whether the error of tax rate is attributable to a tax official's wrong administrative guidance, since the plaintiff's application for refund of this case is not based on the basis of the tax law or the right of request under the reasoning that the plaintiff's application for refund of this case concerning the part of the defense tax amount paid in excess due to mistake of applying 37.5/100 of the premium rate under the proviso of Article 4 (1) 3 of the Defense Tax Act with respect to the foreign corporate tax amount when the plaintiff paid the tax amount of the corporate tax amount after filing a revised return to the defendant pursuant to Article 45 of the Framework Act on National Taxes. The judgment of the court below is just in accordance with the above legal principles and it is not erroneous in the misapprehension of legal principles as to the refund of national tax as well as the theory of lawsuit, and the precedents of this case cannot be justified.

With respect to the second ground:

In the lawsuit of this case, where the plaintiff primarily sought revocation of the defendant's rejection disposition against the plaintiff's application for the payment of the corporate tax portion, erroneous payment of the corporate tax portion, and additional payment of the refund amount, and the defendant's application for the payment of the refund amount are confirmed as illegal, the court below is not obligated to ask the plaintiff for the return of unjust enrichment under the public law as a party's lawsuit, and it does not include the purport of seeking the return of unjust enrichment under the public law as the party's lawsuit. Thus, the court below's determination of this point is not unlawful because the plaintiff did not make the plaintiff change the purport of the claim for the return of unjust enrichment under the public law or did not deliberate on the claim for the return of unjust enrichment under the public law, and the precedents cited by the theory of the lawsuit are not appropriate.

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 Yoon Il-young (Presiding Justice)