Seoul Southern District Court-2014-Gohap-1353 (Law No. 18, 2015.06)

Even if an administrative disposition has been revoked in an appeal litigation after an administrative disposition, it cannot be determined by itself that the administrative disposition constitutes a tort due to the intention or negligence of the public official.

Even if an administrative agency’s execution of its duties by taking a certain opinion before the establishment of the interpretation of the relevant Acts and subordinate statutes was illegal, and thus, it was difficult to expect that it would be an average public official with good faith in dealing with the same treatment method at the time of the disposition, barring any special circumstance, it cannot be deemed that it was due to the negligence of a public official on the ground

Article 2 of the State Compensation Act

2015Na2036981 Compensation, etc.

OO

Republic of Korea and one other

Seoul Southern District Court Decision 2014Gahap11353 Decided June 18, 2015

December 9, 2015

January 8, 2018

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

The judgment of the first instance shall be revoked. The judgment of the court of first instance shall be revoked. The defendant's Republic of Korea shall be revoked. The amount of 3,359,854,680 won and 147,624,390 won from June 1, 2006; 965,182,590 won from May 31, 2007; 1,61,632,910 won from October 19, 2009; 635,414,790 won from April 6, 2010 to the date of delivery of a duplicate of complaint; 20% from the following day to the date of complete payment; 30% from the date of complete payment; 40% from the annual amount of 20% from the date of complete payment; 30% from the date of complete payment; 40% from 264,303,130 won from among 136,297.27

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, and this Court’s reasoning is acceptable in accordance with the main text of Article 420 of the Civil Procedure Act, since it is identical to the reasoning for the judgment of the first instance.

2. Parts in height:

◎ 제1심 판결문 제11쪽 제13행의 "지방세법 시행령 제131조의 2 제1항"을 "지방세법 시행령 제131조 제1항"으로 고친다.

◎ 제1심 판결문 제12쪽 제9행부터 제13쪽 제18행까지를 아래와 같이 고친다.

Determination as to the claim for damages due to unlawful acts . B.

Even if an administrative disposition has been revoked in an appeal litigation subsequent to any other administrative disposition, it cannot be determined immediately that the administrative disposition constitutes a tort caused by a public official’s intentional or negligent act. This is because, even if an administrative agency took one theory before the establishment of the interpretation of the relevant Act and subordinate statutes and dealt with its work, and it was difficult to expect an average public official with good faith at the time of such disposition, barring any special circumstances, it cannot be deemed that it constitutes a tort by a public official (see, e.g., Supreme Court Decisions 96Da53413, Sept. 17, 1999; 200Da20731, Mar. 13, 2001). Meanwhile, if a public official in charge of the administrative disposition is deemed to have lost objective legitimacy due to lack of objective duty of care, it shall be determined that the State’s liability provided for in Article 2 of the State Compensation Act has been satisfied, such as the degree of loss and the purpose of the administrative disposition being infringed by the State or local government and its degree of loss (see, etc.).

In light of the above legal principles, it is examined whether the public officials belonging to the Defendants impose the instant tax on the Plaintiff, or the act of tax payment notice, duty payment notice, and demand for tax payment constitutes tort.

In light of the facts that the judgment of the court below (Seoul Administrative Court 201Gu 3O) was rendered that the construction work was unlawful by deeming the instant land as general aggregate construction subject to taxation for 208 year. According to the respective statements (including number) No. 16, 17, 24, 25, and 26, the Defendants’ report on the construction work under the premise that the instant land is general aggregate construction subject to taxation for 205 to 209 is not legitimate. Meanwhile, it is difficult to view that the Defendants’ report on the construction work under the above premise that the construction work was conducted for 10 years and 10 years and 200 years after the date of new construction of the instant land constitutes a new construction work subject to taxation for 10 years and the Defendants’ report on the construction work under the conditions that the construction work was conducted for 10 years and 20 years after the date of new construction of the instant land. It is difficult to view that the Defendants’ report on the construction work under the above provision of the Local Tax Act was conducted for 13 years and justifiable reasons.

Therefore, the Plaintiff’s claim on the premise that the Defendants’ payment guidance, notice of tax payment, payment demand, and disposition of the instant tax constitute tort against the Plaintiff is without merit without further review.

3. Conclusion

Therefore, all of the plaintiff's claims against the defendants of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal against the defendants is dismissed as it is so decided as per Disposition.