Jinju Support-2016-Ban-4279 ( October 23, 2018)

It is insufficient to view that the tax disposition is void as it has a significant and apparent defect.

Although it is not subject to taxation, it is difficult to see that there was a defect in the disposition of this case by misunderstanding the fact, and even if there is such a defect, it cannot be viewed as an apparent defect in appearance, so it cannot be viewed as an invalidation.

2018Na51451 Demurrer against distribution

Note ○

Korea

Changwon District Court Decision 2016Kadan4279 decided January 23, 2018

October 26, 2018

1. The plaintiff's appeal is all dismissed.

2. We dismiss the Plaintiff’s lawsuit seeking confirmation of invalidity of the taxation disposition against the Defendant Republic of Korea added in the trial.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

The judgment of the first instance court shall be revoked. The transfer income tax that Defendant Republic of Korea rendered to Kim ○ on February 1, 2011

37. The imposition of ○○○○, and ○○○○○, is confirmed to be null and void (the Plaintiff added a claim for nullification confirmation to this court). With respect to a compulsory auction case of real estate (No. 6103), the dividend amount of 5,00,000 Won, 3,000,000 won, 77,61,989 won against the Plaintiff, 80,000 won, 15,426,170 won against the Defendant Republic of Korea, among the dividend table prepared on May 30, 2016 by the said court, shall be corrected to the amount determined by calculating the correct tax amount through administrative litigation, and the remaining amount shall be corrected to be distributed to the Plaintiff).

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is that the plaintiff stated an objection and filed the lawsuit of this case within seven days from the date when the plaintiff stated the objection. In addition to adding the following judgments with respect to the claims added in the trial, it is identical to the reasoning of the judgment of the court of first instance. Therefore, it is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the plaintiff's claim added in the trial room

The plaintiff asserts that the tax disposition by the defendant Republic of Korea (hereinafter referred to as "tax disposition by this case") which imposed capital gains tax on Kim ○○ is null and void due to serious and apparent defects, and thus, the plaintiff sought confirmation of invalidity of the above tax disposition by the defendant Republic of Korea.

In the event that a plaintiff made a mistake in a civil litigation against a case that the plaintiff should file as an administrative litigation without intention or gross negligence, the previous trial procedure and the period of filing the lawsuit have already been imposed as an administrative litigation even though the lawsuit does not have jurisdiction over such administrative litigation, or the subject of

Inasmuch as it is apparent that the litigation requirements as an administrative litigation were satisfied, such as where there is no action, and thus, it becomes unlawful, it may be dismissed as an unlawful lawsuit (see, e.g., Supreme Court Decision 95Da28960, May 30, 1997). The administrative litigation seeking the cancellation or invalidation of an administrative disposition shall be the defendant with the administrative agency externally conducted in its name, unless otherwise provided for in other Acts (see, e.g., Supreme Court Decision 95Nu14688, Dec. 22, 1995). In light of the above legal principles, even if the plaintiff filed a lawsuit seeking invalidation of the taxation disposition against the Republic of Korea, the part seeking invalidation of the disposition of this case against the defendant shall be dismissed as an administrative litigation. However, since the plaintiff's decision seeking invalidation of the final judgment against the Republic of Korea, which is not the administrative agency that issued the taxation disposition of this case, shall be dismissed by the court of △△△△△, the plaintiff's decision seeking invalidation of the above taxation disposition of this case against the defendant 2.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and it is so decided as per Disposition by the assent of all participating Justices, since the plaintiff's appeal is dismissed in its entirety, and the plaintiff's appeal to confirm the invalidity of the taxation disposition against the defendant in Korea added in the