Seoul High Court 2009Nu39478 (2011.04.07)

National High Court Decision 2007west3510 (No. 17, 2008)

A lawsuit filed without omission of judgment in the judgment subject to review is inappropriate.

A lawsuit brought by a final appeal against a judgment subject to review was dismissed due to a lack of deliberation, and there was no omission of judgment in a judgment subject to review, and thus, a lawsuit brought on the grounds that the judgment was omitted is inappropriate.

2011Re-deliberation of the judgment on the detailed global income and the case of request for revocation of disposition

XX

head of Sung Dong Tax Office

Seoul High Court Decision 2009Nu39478 Decided April 7, 2011

November 30, 2011

January 11, 2012

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the first instance are revoked. The Defendant’s disposition imposing global income tax of KRW 27,208,670 on the Plaintiff on February 14, 2007, KRW 46,604,60 on global income for the year 2002, global income tax of KRW 112,237,560 on global income for the year 2003, global income tax of KRW 112,237,560 on global income for the year 2004, global income tax of KRW 115,202,50 for the year 204, global income tax of KRW 84,017,450 for the year 205

1. Judgment subject to retrial;

The following facts are significant in this court. In the case of a claim for revocation of the disposition imposing global income tax (Seoul Administrative Court 2008Guhap48961), which the Plaintiff filed against the Defendant, the court dismissed a part of the lawsuit on November 11, 2009 and rendered a judgment dismissing the remainder of the claim. While the Plaintiff appealed against the part dismissing the claim, this court rendered a judgment dismissing the appeal (2010Na37358; hereinafter referred to as "the judgment subject to review") on April 7, 2011. While the Plaintiff filed an appeal, the Supreme Court dismissed the appeal on August 25, 201 (201Du10652), the original judgment was served on the Plaintiff on August 30, 2011.

2. Whether the lawsuit for reexamination of this case is legitimate

A. The plaintiff's assertion

In the judgment subject to a retrial, the following decisions were omitted. This constitutes “when the judgment was omitted on important matters that may affect the judgment among the grounds for retrial under Article 451(1) of the Civil Procedure Act (No. 9).”

① At the date of pleading 1 and 2, the presiding judge of the appellate court issued an order that “the Defendant shall clarify the basis for calculating the Plaintiff’s income on a yearly basis for the taxation of the instant case, and prepare and submit it in connection with the evidence.” The Defendant submitted a chart indicating the basis for calculating the amount of income for the portion of 2003-205 years through the preparatory documents submitted on September 14, 2010, but did not take any particular measures for the portion of 2001 and 202 years until the closing of argument. The judgment subject to review did not make any decision on this matter.

② The Plaintiff presented specific evidence, such as a lessee’s certificate, regarding a certain number of rent units, and asserted that the amount of rent revenues examined by the Defendant was inaccurate. The judgment subject to a retrial did not make any judgment thereon.

B. Determination

1) Article 451(1) of the Civil Procedure Act, which is applicable mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, provides that "if any of the following applies, a lawsuit may be brought for a retrial on the final judgment," and the proviso provides that "if any of the following applies, this shall not apply to a case in which the relevant party claims the grounds by an appeal or does not know them." In light of the proviso of Article 451(1) of the Civil Procedure Act, a lawsuit for retrial cannot be brought against the final judgment, which became final and conclusive as the grounds for appeal may not be brought. On the other hand, barring any special circumstance, the existence of omission in judgment can be known at the time of being served with the certified copy of the judgment, and thus, a lawsuit for retrial may not be brought. Accordingly, regardless of whether a ground for retrial under Article 451(1)9 of the Civil Procedure Act has been asserted in the final appeal, this does not constitute a legitimate ground for retrial against the final judgment, regardless of whether the grounds for retrial were asserted in the final appeal.

Since a final appeal filed by the Plaintiff against a judgment subject to review was dismissed due to a lack of deliberation, the instant lawsuit filed for a retrial based on the grounds for omitting judgment in the judgment subject to review is unlawful.

2) The grounds for retrial under Article 451(1)9 of the Civil Procedure Act, “when a judgment is omitted on important matters that may affect the judgment” refers to the method of attack and defense which a party submitted in a lawsuit and have an influence on the judgment, and where a judgment is not clearly indicated in the reasoning of the judgment. As long as a judgment is rendered, even if the reasons leading to the judgment are not clearly explained or the grounds for rejecting the party’s claim are not individually explained, it does not constitute an omission of judgment under the above Act (see, e.g., Supreme Court Decisions 2000Da47200, Nov. 24, 2000; 2005Da20, Dec. 8, 2006).

Of the omitteds alleged by the Plaintiff, the part concerning ① is a matter as to whether a party has complied with the exercise of the right to request a tiny, and since the Plaintiff did not have asserted the effect of the lawsuit on the ground that the Plaintiff failed to comply with the statement, the judgment on the means of attack and defense submitted by the court is not omitted even if the court did not render a decision on the said matter. ② As a matter of fact confirmation as to the amount of the Plaintiff’s rent revenue, the judgment subject to a retrial is correct (However

There is no omission of judgment in the judgment subject to reexamination.

3. Conclusion

The retrial suit of this case is dismissed.