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(영문) 서울고등법원 2018.09.18 2017누85858
부가가치세부과처분취소
Text

1. Disposition of imposition of KRW 18,511,190, which the Defendant imposed on the Plaintiff on June 30, 2016, of KRW 15,894, which the Defendant imposed on the Plaintiff on June 30, 2011.

Reasons

1. The reasoning of the judgment by the court in this part is as stated in the corresponding part of the judgment of the court of first instance, in addition to the parts which are written or added below, and thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

The 2nd and 8th and 15th of the judgment of the first instance shall be subject to the installation of machinery and equipment, respectively.

From the second bottom of the judgment of the court of first instance, 3 to 4 "Additional Tax on Unfair Institutings" is referred to as "additional Tax on Unfair Inseption".

The following shall be added at least three pages of the first instance judgment:

E. On March 19, 2018, while the appeal of this case was pending, the Defendant revoked ex officio the part against the Defendant in the judgment of the first instance on March 19, 2018, and the part exceeding KRW 872,100 of the general underreporting penalty tax (i.e., the amount exceeding KRW 3,488,400), thereby reducing the instant disposition to KRW 15,894,890 (i.e., KRW 18,51,190 - KRW 2,616,30).

A letter 3 of the judgment of the first instance shall be accompanied by "Nos. 1 and 2" with "Nos. 1, 2, 6, and 7".

2. If the Plaintiff’s lawsuit and the Defendant’s administrative disposition regarding the portion exceeding 15,894,890 won of the instant disposition are revoked as to the lawfulness of the appeal, such disposition loses its validity and does not exist any longer. The revocation lawsuit against the non-existent administrative disposition is unlawful as there is no benefit of lawsuit.

(See Supreme Court Decision 2012Du18202 Decided December 13, 2012, etc.). The fact that the Defendant revoked ex officio the part of the first instance judgment against the Defendant on March 19, 2018, which was pending in the instant lawsuit, and subsequently corrected the instant disposition to KRW 15,894,890 by reducing the amount of KRW 15,890 is as seen earlier. As such, among the instant lawsuit, the claim for revocation as to the revoked portion is seeking the revocation of a disposition that had already ceased to exist due to the extinguishment of its validity, and thus, is unlawful

The defendant's appeal is also against the disposition which is already excluded from the object of the adjudication, and it becomes illegal as there is no interest in the appeal.

3...

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