[1] The binding force of the revocation ruling and the limit to which the rectification of the adjudication is allowed

[2] The case holding that a correction ruling is invalid on the ground that it is not identical with the original ruling in light of the circumstances of the adjudication and correction ruling

[1] In a ruling under the Administrative Appeals Act, a revocation ruling made by a ruling authority on a disposition of imposition shall bind the pertinent ruling authority and the administrative agency, which shall not be subject to any decision or disposition against the ruling authority as well as the ruling authority, and even if so, it shall be null and void. However, a correction shall be permitted to the extent that it does not impair the identity of the ruling, only where it is evident that there is any clerical error, miscalculation or other similar error in the ruling under Article 27 (1) of the Enforcement Decree of the Administrative Appeals Act

[2] The case holding that a correction ruling is null and void on the ground that it is not identical with the original ruling in light of the circumstances of the adjudication and correction ruling

[1] Article 37 of the Administrative Appeals Act, Article 27 (1) of the Enforcement Decree of the Administrative Appeals Act / [2] Article 37 of the Administrative Appeals Act, Article 27 (1) of the Enforcement Decree of the Administrative Appeals

[1] Supreme Court Decision 71Nu110 decided Feb. 29, 1972 (No. 20-1, 26)

Seoul High Court Decision 200Na1448 decided May 1, 200

Korea

Busan District Court Decision 200Na18953 delivered on December 6, 2000

1. The judgment below is modified as follows.

A. The defendant shall pay to the plaintiff 212,234,810 won and 38,758,280 won among them from October 26, 1994; 42,384,770 won from October 31, 1994; 64,187,480 won from October 31, 1995; 29,968,790 won from October 10, 1996; 27,064,260 won from October 29, 1997 to August 16, 201; and 35% from the day following the day of full payment to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. The costs of the lawsuit shall be five minutes after the combination of the first and second instances, and four minutes shall be borne by the defendant, and the remainder by the plaintiff.

3.The part of the above 1-A(A) which was not declared provisional execution by the lower judgment can be provisionally executed.

Plaintiff: The original judgment shall be changed as follows. The Defendant filed a claim with the Plaintiff for the amount of KRW 212,234,810 and KRW 38,758,280 from October 26, 1994; KRW 42,384,770 from October 31, 1994; KRW 64,187,480 from October 31, 1995; KRW 29,968,790 from October 10, 1996; KRW 27,064,260 from October 29, 199 to October 95; and KRW 25,00 from October 29, 197 to the date of delivery of each complaint; and KRW 42,384,70 from October 25, 199 to the date of full payment (Plaintiff).

Defendant: The part against the Defendant in the lower judgment is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleading in each entry of Gap evidence 1-1 through 6, Gap evidence 2, 3, Gap evidence 4-1 through 7, Gap evidence 5-1 through 5, Gap evidence 6-8, Gap evidence 9-1, 2, Eul evidence 1-5, Eul evidence 1-1 through 5, Eul evidence 2-1 through 3, Eul evidence 3-1 through 5, Eul evidence 4 through 7, and 10.

A. For the period from 192 to 1997, the Plaintiff owned (1) a housing site, such as (2) 46-8 square meters in Nam-dong 489-25 to 526.0 square meters in Nam-gu, Busan, and (2) 46-10 to 629.4 square meters in 629 square meters in 46-8 to 412.6 square meters in 46-6 square meters in 434 to 60,626.6 square meters in Gangnam-gu, Gangnam-gu, Seoul; (4) a housing site, such as 95.067/60,626.6 square meters in 434 to 60,626 square meters in 45.6 square meters in 1992 to 1997.

B. For the period from 193 to 1997, the head of the Geumcheon-gu Busan Metropolitan Government, upon delegation of the defendant's affairs, imposed annual charges on the plaintiff (hereinafter referred to as the "charges") for over-ownership of the housing site in 193 to 197 as stated in the former Act on the Ownership of Housing Site (repealed by Law No. 5571 of September 19, 198; hereinafter referred to as the "Act on the Ownership of Housing Site") on the housing site in the above paragraphs (1) to (4). The plaintiff paid the total amount of the charges to the defendant on the date on which the above detailed statement was stated and reverted to the defendant.

C.In June 15, 1998, on the ground that the Plaintiff was negligent in omitting the housing site from the subject of the imposition of the above Section A(5) at the time of the said imposition, the head of the Geum-gu Office again imposed an amount of KRW 164,607,350 remaining after deducting the previous payment charges, which was adjusted to the amount of KRW 366,970,930, which was the sum of the charges for the year 1993 to the year 1997, and again imposed an administrative appeal seeking cancellation of the said imposition. The Central Land Tribunal filed an administrative appeal seeking cancellation of the said imposition. The Central Land Tribunal rendered a ruling revoking the disposition on June 15, 1998, on the ground that the head of the Geum-gu Office erroneously calculated the area of the land in the above Section A(4) on the ground that it was erroneous in calculating the area of the land in the above Section (5).

D. On February 5, 199, pursuant to the purport of the above ruling on February 5, 199, the head of Geumcheon-gu imposed the Plaintiff a charge of KRW 148,219,50 (hereinafter referred to as the “instant disposition”). The Plaintiff paid the charge on April 6, 199, KRW 148,219,50, and then filed an administrative appeal seeking cancellation of the instant disposition. On April 29, 199, the Constitutional Court rendered a decision that the entire Act on the Ownership of Housing Site in the Constitutional Court was against the Constitution. On June 15, 1996, the Central Land Expropriation Committee revoked the instant disposition of KRW 350,583,080 (hereinafter referred to as the “instant disposition”), on the ground that the instant disposition of imposition was conducted without legal grounds, and the instant disposition of imposition became final and conclusive around 1994, 198.

E. After that, the plaintiff filed the lawsuit in this case seeking the return of the charge paid in accordance with the initial disposition on October 17, 200, and the court below filed a request for correction of the disposition on December 6 of the same year, which was the initial disposition on December 6, 2000. Thus, as long as the disposition in this case was revoked, the original disposition on December 6 of the same year was added to this disposition. As long as the disposition in this case was revoked, the court below sentenced that the defendant shall pay the plaintiff the initial charge amounting to 202,363,580 won (350,583,080 won-148,219,50 won) and damages for delay, and the head of

F. The Central Land Tribunal, on February 22, 2001, stated that the disposition of this case was revoked at the expiration of the period for filing a lawsuit, and stated that "350,583,080 won" is a clerical error of "148,219,50 won" in the disposition of this case and the summary of the case, on the ground that Article 27 (1) of the Enforcement Decree of the Administrative Appeals Act is clear that the above portion of "350,583,080 won" in the disposition of this case and the summary of the case are "148,219,50 won" as "148,219,50 won" (hereinafter referred to as "the correction ruling of this case") and that the plaintiff filed a correction ruling with the court of Busan District on April 26, 2001 as the administrative litigation of this case.

2. Determination:

A. Whether the liability for return of unjust enrichment is established

(1) As to the nature of the instant disposition

(A) The instant disposition is a disposition that revises the price of the housing site exceeding the upper limit of the ownership of the housing site, which is subject to the initial imposition, and, in the event that an increase or decrease is made after the imposition, the said disposition is not an additional determination on only the portion exceeding the initial housing site price and the charge in the initial disposition, but a single housing site price and the charge in the initial disposition, including the housing site price and the charge, shall be re-determined. If an increase or decrease is made after the imposition, the initial imposition disposition shall lose its independent existence value by absorbing the initial imposition disposition (see Supreme Court Decision 93Nu8337 delivered on September 28, 1993).

(B) However, in the instant case, the entire disposition of this case was imposed by the Constitutional Court's decision of unconstitutionality in violation of the Constitution, and thus, it is unlawful. Furthermore, inasmuch as the revocation ruling of the instant disposition has become final and conclusive, barring any other special circumstances, the Defendant's charges of KRW 202,363,580, the sum that the Defendant received from the Plaintiff by the initial disposition of unconstitutionality shall be the Defendant's benefit without any legal ground.

(2) As to the validity of the instant corrective ruling

(a)In a ruling under the Administrative Appeals Act, a revocation ruling rendered by a ruling authority on a disposition by a ruling authority shall bind the ruling authority and the administrative agency concerned, and it shall not be made or made any decision against it, and even if it was made, it shall be null and void (see Supreme Court Decision 71Nu110 delivered on February 29, 1972), provided, however, that a correction shall be permitted to the extent that it does not impair the identity of the ruling unless it is evident that there is any error of misunderstanding, miscalculation or other similar mistake in the ruling in accordance with Article 27(1) of the Enforcement Decree of the Administrative Appeals Act.

(B) However, the correction ruling of this case is ordered due to an obvious clerical error in the ruling of this case, but according to the circumstances of the ruling and the correction ruling of this case recognized earlier, it cannot be deemed that the ruling of this case is a case where it is evident that there is a clerical error or other similar error as provided by the Enforcement Decree of the Administrative Appeals Act. Rather, the correction ruling of this case is a case where the ruling of this case is invalid because it is based on the premise that the claim of the applicant for correction as to the legal nature of the correction order is in conflict with the Supreme Court precedents as to the legal nature of the correction order, the ruling of this case was accepted by the ruling authority, which is based on the premise that the charge by the initial disposition of this case was already determined,

B. Scope of return of unjust enrichment

(i)the refunded principal;

The principal to be refunded by the Defendant is KRW 202,363,580 as seen earlier.

(ii)additional refund;

(A) The plaintiff asserts that, in accordance with Article 32 (4) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15899 of September 25, 1998; hereinafter referred to as the "Enforcement Decree"), additional dues should be paid for the period from the date of refund to the date of actual payment in accordance with Article 30 (2) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 15899 of September 25, 1998).

(B) As such, if a decision of unconstitutionality is rendered with respect to Acts that are the basis of delegation of laws and regulations by the Constitutional Court, it would lose its validity. However, the Constitutional Court’s decision of unconstitutionality with respect to the laws and regulations owned on the housing site by 10, supra, is that Article 7(1)1, Article 19(1), and Article 24(1) of the Enforcement Decree of the National Tax Act and Article 2 subparag. 2 of the Addenda (Act No. 4174, Dec. 30, 198) of the Framework Act on National Taxes are not applicable mutatis mutandis to the cases where: (a) a person who was issued a decision of unconstitutionality with respect to 20, supra; (b) a decision of unconstitutionality with respect to additional dues would not be deemed to have been applied mutatis mutandis to 30, supra; and (c) a decision of unconstitutionality with respect to the subsequent imposition of additional dues on the housing site by 20, supra, that a subsequent decision of unconstitutionality may not be applied to the Constitutional Court.

(C) Accordingly, the defendant shall return to the plaintiff the additional dues of KRW 202,363,580 based on the initial disposition of imposition at the rate of three percent (10.95%) per day (10.95%) from the payment date to the payment date. The additional dues of KRW 148,219,50 already refunded to the plaintiff on Nov. 13, 1999 shall be refunded from April 6, 199 to the date of the above refund at the rate of 9,871,230 won (148,219,50 won x 10.95%) at the rate of 10.95 percent per annum from the date of payment to the date of the above refund.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff additional dues and delay damages at the rate of 212,234,810 won (202,363,580 won + 9,871,230 won) and 202,363,580 won among the principal of the principal of the above payment, which are 202,363,580 won from the date of the above payment to August 16, 2001, which is deemed reasonable for the defendant to dispute about the existence or scope of the obligation, and 10.95% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is justified within the above recognized limit, and it is dismissed as there is no other reason. Since the judgment of the court below is unfair for a different conclusion, it is so decided as per Disposition by accepting part of the plaintiff's appeal by the court below.

Judges Kim Jong-sung (Presiding Judge)