Daegu District Court 2013Guhap10726 (2.02.07)

early 2012Gu2385 ( December 20, 2012)

A disposition of seizure is against the binding force of the ruling, and a disposition of seizure is void as a matter of course, in violation of the prohibition of repetition of the binding force.

It is nothing more than that of the previous attachment disposition that differs only from the legal evaluation or made clear by supplementing unclear matters, and because it is identical to the specific grounds and basic facts of the previous attachment disposition in relation to social factual relations which form the basis thereof, the attachment disposition is void automatically.

Article 28 of the Private School Act, Article 5 of the Enforcement Decree of the same Act, Article 37 of the former Administrative Appeals Act

2014Nu4307 Nullification of attachment disposition

AAA Institute of Education for a school foundation

Racing Head of the Tax Office

Daegu District Court Decision 2013Guhap10726 Decided February 7, 2014

June 20, 2014

July 11, 2014

1. The part of the judgment of the court of first instance against the plaintiff that confirms the invalidation below shall be revoked.

The Defendant confirms that the attachment disposition of October 15, 2004 (the receipt of October 18, 2004, No. 59808, Oct. 18, 2004) issued on October 15, 2004 with respect to an OO-si O-si 1295-1 4,530 square meters, and a Ri 1295-2 4,473 square meters per annum 1295-2 square meters per annum is null and void.

2. The plaintiff's remaining appeal is dismissed.

3. 2/5 of the total litigation costs is borne by the Plaintiff, and 3/5 by the Defendant, respectively.

The judgment of the court of first instance is revoked. The attachment disposition of March 10, 1999 (No. 12390, Mar. 12, 1999) rendered by the Defendant with respect to OO OO 26 m26 m2,69 m2,000 m2,000,000 O OO OO 1295-1 m295-2 8,530 m2,0000,000 m295-2 4,473 m2,000 m2,0000 m2,0000 O O O O m26 m26 m2,000 m2,000,0000 m2,0000 m2,000 m25,000 m25,000 m20

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is citing this in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on the defense prior to the merits

A. The defendant's assertion

The lawsuit of this case is deemed to be a lawsuit seeking revocation of each disposition of this case, and the lawsuit of this case under the National Tax Collection Act is subject to a prior trial procedure. The plaintiff received each disposition of this case on or around March and October 2004, and only around January 15, 2013, after which 13 years and 10 months passed since it received each disposition of this case, and around January 15, 2013, it was filed with the Tax Tribunal to dispute each disposition of this case and filed a request for a trial on the grounds of its lapse of the period of appeal. Accordingly, the lawsuit of this case shall be dismissed as unlawful without going through a legitimate prior trial procedure.

B. Determination

It is evident that the lawsuit of this case seeks confirmation on the premise that each of the dispositions of this case is null and void as a matter of course. Thus, there is no need to go through the previous trial procedure in the lawsuit seeking confirmation of invalidity of administrative disposition, including the lawsuit subject to the necessary transfer procedure, and there is no limit on the filing period of the lawsuit. Therefore, the defendant's defense

3. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiff's assertion

1) The instant land.

The plaintiff used the land in this case as a field for the field of the field of the field of the field of the BB high school under the plaintiff's control and left the field of the field, but it is expected to be used as a site for the cultivation of the field of the field for practical training in the above school, so the land in this case is an fundamental property for education

The Plaintiff initially set the disposal period from the superintendent of the Office of Education as of August 20, 1990, and thus, cannot dispose of the instant land within the said period after obtaining permission to change the purpose of use (for educational purposes and profit-making purposes) and obtaining permission to dispose of the instant land from the superintendent of the Office of Education. However, the Plaintiff lost its validity. As such, the instant land still remains as its fundamental property for education, since it was impossible to dispose of the instant land by the said

On May 30, 201, the Superintendent of the Office of Education also sent a reply to the defendant on May 30, 201 along with the plaintiff's basic property list stating the land in this case as the plaintiff's basic property for education. The National Tax Tribunal of the Ministry of Finance and Economy has made a ruling to revoke the seizure disposition (hereinafter referred to as "transfer seizure disposition") on the land in this case on April 14, 1997 on the ground that the land in this case is fundamental property for education. In full view of the above, the land in this case constitutes the land in this case as stipulated in Article 28 (2) of the Private School Act and Article 12 (1) of the Enforcement Decree of the Private School Act (No. 1), practical training, or research facilities (No. 4) and thus, the disposition in this case constitutes a basic property for education, the disposition in which the disposition and seizure thereof are prohibited, and thus, the disposition in this case is contrary to the mandatory law, and its defect is grave and apparent

Furthermore, the instant disposition is invalid in that it is against the binding force of the said ruling on the previous attachment disposition.

2) Each disposition of this case with respect to the instant land and forest land (hereinafter “instant disposition”) shall be null and void.

In order to seize the instant forests, which are fundamental property for education owned by the Plaintiff, and fundamental property for profit, the Defendant shall obtain permission from the competent authorities pursuant to Article 28 (1) of the Private School Act.

Nevertheless, the defendant made each of the dispositions of this case on the land and forest land of this case without permission from the competent authorities, and since such defects are significant and obvious, each of the dispositions of this case is null and void.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the validity of the instant disposition

A) Ruling of the National Tax Tribunal on the transfer of attachment disposition

In the absence of dispute or in full view of the purport of the entire pleadings, the following facts are recognized.

(1) On November 23, 1990, the Plaintiff transferred OO-dong 228-2 school site 17,274 square meters to a third party. On February 16, 1996, the Defendant imposed an aggregate of corporate tax on the transfer margin of the said real estate on the Plaintiff.

(2) Upon the Plaintiff’s default, the Defendant issued a demand notice on March 11, 1996, and issued an attachment disposition (transfer disposition) on May 8, 1996 regarding real estate, including the instant land and forest land, and buildings, etc.

(3) On May 10, 1996, the Plaintiff filed a request for adjudication with a case number of 96 GuOOOO on November 21, 1996 at the National Tax Tribunal of the Ministry of Finance and Economy after filing an objection on May 10, 1996, and a request for examination on August 5, 196.

(4) At the time, the Plaintiff asserted that the real estate owned by the Plaintiff, which was subject to the same attachment disposition as above, is an underlying asset for education and cannot be subject to auction pursuant to the relevant statutes, such as the Private School Act, and thus, the attachment box is just. Accordingly, the Commissioner of the National Tax Service argued that the attachment disposition is not unlawful, separate from whether it can be the object of compulsory auction.

(5) According to the current state of the Plaintiff’s property confirmed by the Superintendent of the Office of Finance and Economy on April 14, 1997, the National Tax Tribunal of the Ministry of Finance and Economy confirmed that some real estate including the instant land is registered as educational property. Among the Plaintiff’s real estate subject to the seizure disposition, the seizure of some real estate, such as the instant land, which is recognized as an endowment directly used for the education of private schools, is not allowed, and the seizure is allowed only for the real estate recognized as an fundamental property for other purposes, including the instant forest, and it is deemed that the seizure is allowed only for the real estate recognized as an fundamental property for other purposes, such as the instant forest. Therefore, the attachment disposition which seizes both fundamental property for education and fundamental property for profit was erroneous in the disposition of seizure of all the Plaintiff’s claim (hereinafter referred to as the “instant adjudication”), and (6) The order of the said adjudication of the National Tax Tribunal of the Ministry of Finance and Economy is to revoke the seizure of the real estate directly

(B) the binding force of the ruling;

(1) Contents and criteria

Article 37 (1) of the former Administrative Appeals Act (wholly amended by Act No. 9968, Jan. 25, 2010) provides that adjudication shall bind the administrative agency that is the respondent and other relevant administrative agencies.

As above, the ruling is binding on the disposition agency as to the recognition and judgment of the order of the ruling and the facts constituting the premise thereof, i.e., the determination on the specific grounds for illegality such as the disposition, and thus, it is not allowed to take the same disposition again on the grounds that it is identical in the grounds that it is judged illegal as to the pertinent disposition and the basic factual relations are recognized (see, e.g., Supreme Court Decision 2002Du3201, Apr. 25, 2003)

In addition, the identity of the factual basis here should be determined by comprehensively taking into account all the circumstances, such as the time and place closeness with the pertinent disposition, and the attitude and result of the act, and it should be determined based on whether the social factual basis, which is the basis of the disposition, is identical in the basic point of view (see, e.g., Supreme Court Decision 2000Du8684, Sept. 28, 2001). In this case, it should be deemed that the basic factual basis is the same only to distinguish only the legal assessment or the basis, or to clarify the factual basis that is unspecified and unknown.

(ii)Effect;

When a ruling, such as a cancellation of a disposition, a modified ruling, or a ruling for confirmation of nullity, etc., administrative agencies concerned such as the disposition agency, etc. shall not conduct any act in conflict with the ruling, and as a passive effect at its speed, the administrative agencies concerned and the administrative agencies concerned as the respondent and the administrative agencies concerned shall not repeat the same disposition against the same party in the same facts.

On the other hand, where a disposition agency has issued the same disposition with respect to the same fact in violation of the prohibition of repeated prohibition, it constitutes grounds for invalidation. If interpreting that the relevant disposition is merely a ground for revocation, it may be contrary to the purport that the Administrative Appeals Act recognizes binding force due to the lapse of the period for filing a lawsuit, etc. (see, e.g., Supreme Court Decision 89Nu985, Sept. 12, 1989).

(2) Whether the disposition is against the binding force of the decision of this case

In light of the above legal principles, the order of the decision of the National Tax Tribunal of the Ministry of Finance and Economy (the ruling of this case) on the disposition of seizure before the Ministry of Health and Economy is "Revocation of the defendant's transfer disposition of fundamental property for education including the land of this case", and the facts constituting the premise thereof are that the land of this case constitutes fundamental property for education, which was reported to the current status of property, etc. owned by the plaintiff as confirmed by the superintendent of education.

On the other hand, the disposition of this case is basically based on the judgment that the land of this case constitutes a fundamental property for profit-making purposes based on the Plaintiff’s default on corporate tax as seen earlier. According to the Defendant’s reply, it is used as farmland as a result of a survey on the current status of the land after the above ruling, and it is based on the fact that the third party received rice income direct payments (limited to the fact that the land of this case has already been changed into a basic property for profit-making purposes). It is nothing more than the first instance court’s fact that the land of this case was changed into a basic property for profit-making purposes, such as inquiry into the superintendent of education of the Office of Education in the first instance court, and it is nothing more than the mere fact that the legal assessment was made clearly different or unclear compared to the previous seizure disposition, and it constitutes a case where there is no change in social factual relations, which serves as the basis for the previous seizure disposition, and thus, it constitutes a case where it is recognized as identical with the specific

Therefore, the instant disposition is against the binding force of the instant ruling on the previous attachment disposition, and it constitutes a case where the same disposition was made with respect to the same facts in violation of the repeated prohibition of the binding force of the previous attachment disposition, and thus, it is reasonable to deem the remainder of the grounds for nullification of the Plaintiff’s assertion to be null and void, without further review.

2) As to the validity of the instant disposition

A) Whether attachment disposition for basic property for profit-making purposes is granted

According to Article 28(1) and (2) of the Private School Act and Article 12(1) of the Enforcement Decree of the Private School Act, with respect to fundamental property other than school sites and teachers, etc. where a school foundation is unable to sell or offer as security, donation, lease, exchange, exchange, or offer as security, or where a school foundation intends to sell, lease, exchange, or offer as security, or to waive the obligation or the right, the permission of the competent agency shall be obtained. Thus, barring special circumstances such as where the competent agency is unable to obtain permission, seizure of such fundamental property shall be allowed (see, e.g., Supreme Court Decision 2002Du3669, May 16, 2003).

On the other hand, there is no dispute between the parties as to the fact that the forest of this case constitutes an fundamental property for profit-making, and there is no special circumstance to acknowledge that the circumstances where the competent authorities cannot obtain permission with respect to the disposition, etc. of the forest of this case are certain, it is reasonable to deem that seizure of the forest

Therefore, the Plaintiff’s assertion on this part is without merit since the instant disposition cannot be seen as null and void.

B) Plaintiff’s assertion about permission of competent authorities

Accordingly, according to the standards for securing basic property for profit-making under the school foundation’s Order on Standards for School Management Property, the Plaintiff asserts that the Plaintiff has a sufficient reason not to permit the disposal, etc. of the instant woodland, considering that the instant woodland is the basic property for profit-making, since it consists of 17 classes at middle school and 27 classes at high school, the Plaintiff is ultimately required to secure basic property for profit-making by the total members of the OOOO as it consists of 17 classes at middle school.

Therefore, in light of the purport of the entire pleadings and the above evidence, it appears that the land of this case appears to have an additional real estate other than the forest of this case as the basic property for the plaintiff's profit, and the actual legal nature of the land of this case is deemed to be an basic property for profit, and other property such as cash owned by the plaintiff, etc. in light of the above, it is difficult to readily conclude that the financial status of the plaintiff does not meet the minimum standard for basic property, and it is difficult to conclude that the competent agency does not permit the disposition, etc. of the forest of this case solely on the ground of the above argument of the plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of seeking nullification of the disposition of this case. The remaining claims are dismissed as it is without merit. The plaintiff's claim of this case is revoked, since part of the judgment of the court of first instance, which has partially different conclusions, against the plaintiff as to the part of confirming invalidity of the disposition of this case is unfair, and the plaintiff's claim as to this part is accepted, and the remaining part is justified, and it is so decided as per Disposition.