If the content of the claim as a lawsuit for an intermediate confirmation cannot be seen as having a preliminary legal relationship with the original claim, the lawsuit for an intermediate confirmation is unlawful.

A lawsuit for interim confirmation refers to a lawsuit seeking confirmation of legal relations with respect to the existence of a legal relationship with which a prior determination of the original claim is made while the lawsuit is pending, and thus, if the contents of a lawsuit for interim confirmation cannot be deemed to have a prior legal relationship with respect to the original claim, the lawsuit for interim confirmation are unlawful.

Article 264 of the Civil Procedure Act: Action for Intermediate Confirmation

2015Na2015700 Return, etc. of unjust enrichment

2015Na9600 (Intermediate Confirmation Lawsuit) Return, etc. of unjust enrichment

2015Na9617 (Intermediate Confirmation Lawsuit), return, etc. of unjust enrichment

2015Na21068 (Intermediate Confirmation) Action for the Confirmation of illegality in omission (Intermediate)

2015Na26285 (Intermediate Confirmation Lawsuit) Action for the Intermediate Confirmation of Title Trust Existence

2015Na28793 (Intermediate Confirmation) Action for the Confirmation of Ownership (Intermediate)

Plaintiff (Intermediate Confirmation Plaintiff) and appellant

IsaA

Defendant (Intermediate Confirmation Defendant), Appellants

The Republic of Korea and four others

Seoul Central District Court Decision 2014Gahap19702 Decided January 21, 2015

October 21, 2015 (for the defendant against the Republic of Korea),

November 18, 2015 (Suss Defendants)

December 11, 2015

1. All of the claims for cancellation of the disposition of capital gains tax, the claims for cancellation of the sales contract and the ancillary claims, and the claims for each intermediate confirmation of the plaintiff (the intermediate confirmation plaintiff) shall be dismissed, among the main claims added at the trial of the case.

2. The part of the claim for delay damages against the remainder of the defendant (the intermediate confirmation defendant) except the defendant (the intermediate confirmation defendant) expanded in the appeal and the trial of the plaintiff (the intermediate confirmation plaintiff) is dismissed.

3. After filing an appeal, the costs of the lawsuit shall be borne by the Plaintiff (the intermediate confirmation Plaintiff).

1. Purport of claim

A. Main Action: as listed in the separate sheet No. 3: [The Plaintiff (the intermediate confirmation Plaintiff; hereinafter referred to as the “Plaintiff”) shall be as listed in the separate sheet No. 1: (1) the Defendant (the Defendant (the intermediate confirmation Defendant; hereinafter referred to as the “Defendant”) shall claim restitution of unjust enrichment against the Republic of Korea; (2) the Defendant’s claim for cancellation of ownership transfer registration against the Defendant ChoiB on the real estate listed in the separate sheet No. 1; and (3) the claim for restitution of unjust enrichment against the Defendants other than the Defendant Republic of Korea; and (3) the claim for damages due to joint tort against the Defendants other than the Defendant Republic of Korea, while expanding the portion of the claim for delay payment against the Defendants other than the above Defendant Republic of Korea; and (4) the Defendant Republic of Korea shall seek revocation of the instant sales contract; and (5) the preliminary claim for imposition of capital gains tax against the Defendant Republic of Korea).]

(b) Action for interim confirmation: as shown in Attachment 4. List (the plaintiff additionally filed an action for interim confirmation at a trial).

2. Purport of appeal

5. As shown in the list (the plaintiff did not enter the part concerning the claim for cancellation of the ownership transfer registration as to the real estate listed in the table No. 1. against the above defendant ChoiB, in the purport of the appeal)

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the lawsuit for intermediate confirmation

A. Relevant legal principles

The main text of Article 264(1) of the Civil Procedure Act provides, “When a judgment is made in the course of a lawsuit, the parties may file a lawsuit seeking confirmation of the legal relationship separately.” The lawsuit for interim confirmation refers to a lawsuit seeking confirmation of the legal relationship when there is a dispute between the parties as to the existence or absence of the legal relationship with respect to the original claim, while the lawsuit is pending, when the parties dispute over the existence or absence of the legal relationship with respect to the determination of the original claim. As such, in a case where the content of the Plaintiff’s claim as a lawsuit for interim confirmation cannot be deemed as having a prior legal relationship with respect to the original claim, the lawsuit for interim confirmation is unlawful (see, e.g., Supreme Court Decision 83Nu554, 555,

B. Determination of illegality in imposing capital gains tax (2015Na21068)

1) Defendant Republic of Korea asserts that the disposition of imposition of capital gains tax on each real estate of this case is unlawful, since the judgment on the principal claim of this case is not in a preemptive relationship, and that the lawsuit for interim confirmation is unlawful.

2) On the other hand, the Plaintiff’s claim for the cancellation of the disposition imposing capital gains tax among the claims filed in this case, which were added at the trial at the trial at the trial, is dismissed as unlawful as seen in paragraph 4(a) of the following Paragraph. As such, the illegality of the disposition imposing capital gains tax on each of the instant real estate is difficult to be recognized, not in a preemptive relation to the judgment on the claims filed in this case, and further, as an independent lawsuit. Therefore, the Plaintiff’s lawsuit seeking interim confirmation as to whether the disposition imposing capital gains tax is unlawful (it is unlawful, even if the Plaintiff’s claim for the return of unjust enrichment against the Republic of Korea is deemed as the illegality of the disposition imposing capital gains tax (it is deemed that the disposition imposing capital gains tax is unlawful only on the Defendant’s claim for the return of unjust enrichment against the Republic of Korea), and thus, it does not result in the Defendant’s obligation to return unjust enrichment to the Republic of Korea

C. Determination on whether a lawsuit for interim confirmation on payment of capital gains tax is lawful (2015Na21068 Cases)

We examine ex officio whether the lawsuit for interim confirmation on the payment of capital gains tax is legitimate.

The plaintiff filed a lawsuit for interim confirmation that "the plaintiff jointly pays capital gains tax to the defendant Republic of Korea". This does not constitute a lawsuit seeking confirmation of legal relations. Thus, the plaintiff's lawsuit for interim confirmation is unlawful.

D. Determination as to the legitimacy of a lawsuit for the remaining intermediate confirmation (the case of 2015Na9600, 2015Na9617, 2015Na26285, 2015Na28793)

We examine ex officio the legitimacy of lawsuits for interim confirmation.

1) As the principal lawsuit of this case, the Plaintiff filed a claim for damages arising from a tort, such as payment of the purchase price, fabrication of relevant documents, or false assertion, and filed a lawsuit for the cancellation of the sales contract of this case between the Plaintiff and Defendant LB, the existence of the remainder payment obligations under the sales contract of this case between the Plaintiff and Defendant LBC, the absence of power of representation, the existence of title trust, and the existence of title trust, and the title trust No. 1.

2) The main claim of this case was at issue, despite the absence of the authority to receive the purchase price at the time of receipt of the purchase price, and whether the Defendants conspired to receive the purchase price and committed tort, such as forging documents related to the sales contract of this case. Thus, the existence of the remainder payment obligations under the sales contract of this case between the Plaintiff and Defendant LbCC and the Plaintiff and Defendant LbCC, whether there was a right of representation or a title trust, and whether there was a title trust between the Plaintiff and Defendant LbCC, cannot be deemed as a prior relation with the principal claim. Furthermore, it is difficult to recognize the interest of confirmation capable of being treated as an independent lawsuit (the intermediate confirmation lawsuit against the Defendant Republic of Korea seeking the confirmation of ownership of real estate listed in attached Form 1, is unlawful in that it was filed after the pleadings against the Defendant Republic of Korea were closed).

3) Therefore, the Plaintiff’s lawsuit for interim confirmation is unlawful in entirety.

3. Determination as to the defense prior to the merits of the Defendant NoD, MaximumB, and NA against the main claim of this case

The court's reasoning on this part is as stated in Section 2-A (A) of the reasoning of the judgment of the court of first instance, and therefore, it is accepted pursuant to the main sentence of Article 420 of the Civil Procedure Act (the defendant intervenor also made a defense before the merits in the court of first instance. When the party concerned raises an objection against the intervention, the court shall decide whether to allow the intervention. According to the records, the defendant's intervenor submitted a motion to intervene in the intervention to assist the bestB on June 30, 2014. The plaintiff submitted a written objection against the intervention on July 4, 2014. The court of first instance did not notify the plaintiff of the decision on whether to allow the intervention on the above Kim Jong-sung's intervention on the date for pleading or the date for pleading, and it is recognized that the court of first instance did not make any decision in the order of the judgment of the court of first instance. Accordingly, since the court of first instance omitted the judgment on the part of the defendant's intervention on the part of the court of first instance.

4. Determination on the legitimacy of the main claim of this case

A. Determination as to whether the revocation of the capital gains tax imposition disposition against Defendant Republic of Korea is legitimate among the primary claims

1) The plaintiff's assertion

The Plaintiff asserts that if the actual owner of each real estate of this case is Defendant ParkCC, the Defendant Republic of Korea should revoke the disposition imposing capital gains tax on the Plaintiff.

2) Determination

ex officio, we examine the legitimacy of the part concerning the above claim in the principal lawsuit of this case.

A) A lawsuit seeking the cancellation of a capital gains tax imposition disposition against Defendant Republic of Korea is subject to administrative litigation as an appeal litigation to revoke and request the administrative agency’s illegal disposition (see Supreme Court Decision 95Da28960, May 30, 1997). However, in the event that the Plaintiff files a lawsuit as an administrative litigation without intention or gross negligence, if it has jurisdiction over the administrative litigation at the same time, it shall be deliberated and determined by administrative litigation, and if it does not have jurisdiction over the administrative litigation, it shall be determined by administrative litigation. If the lawsuit is filed as an administrative litigation because it is obvious that the procedure and period of the trial as an administrative litigation already lapsed or there is no disposition subject to administrative litigation, etc., and even if the lawsuit is filed as an administrative litigation, it shall not be deemed an unlawful lawsuit and it shall be transferred to the competent court (see Supreme Court Decision 95Da28960, May 30, 1997). Therefore, if it is obvious that the litigation has already been dismissed as an administrative litigation even if it does not exist.

B) According to Article 56(3) of the Framework Act on National Taxes, an administrative litigation against an illegal disposition, as a disposition under the Framework Act on National Taxes or the tax-related Acts, shall be filed within 90 days after the decision on a request for examination or adjudgment is notified. According to Articles 61(1) and 68(1) of the Framework Act on National Taxes, a request for examination or adjudgment shall be filed within 90 days after the date when the relevant disposition is known. According to the evidence No. 9, a transfer income tax was paid for a disposition imposing transfer income tax on each real estate sale during the period from July 31, 2007 to December 31, 2009. Thus, the Plaintiff was aware of a disposition imposing transfer income tax at the latest at the time of the payment of the said transfer income tax. Thus, insofar as there is no evidence to prove that the Plaintiff had undergone the pre-trial procedure by making a request for examination or adjudgment within 90 days from this day, even if the Plaintiff filed a request for revocation of the transfer income tax in this case as an administrative litigation.

Therefore, the part of the Plaintiff’s claim for cancellation of capital gains tax disposition is unlawful.

B. Determination as to the legitimacy of a claim for cancellation of a sales contract and a preliminary claim among the main claims

1) The plaintiff's assertion

The Plaintiff primarily asserted that Defendant Park PCC should impose capital gains tax of KRW 106,159,820 on Defendant Park PCC, on the following grounds: (a) the cancellation of the sales contract for the Plaintiff’s share of each of the instant real estate; and (b) Defendant Park PCC led Defendant Park PCC to the actual owner of each of the instant real estate.

2) Determination

We examine ex officio the legitimacy of each of the above claims.

A lawsuit of formation aimed at forming a change in existing legal relations is recognized only in cases where the law explicitly provides for the effect of forming a change in existing legal relations, and it is not permissible in cases where there is no legal basis (Supreme Court Decision 92Da35462 delivered on September 14, 1993).

Although it is apparent that the Plaintiff’s claim for cancellation of a sales contract and for the imposition of capital gains tax fall under the litigation form in its nature, the aforementioned lawsuit is unlawful since there is no express provision in the law.

5. Determination of the plaintiff's primary claim against the defendant's Republic of Korea on the claim for return of unjust enrichment

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance as stated in Paragraph 4. Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

6. Of the Plaintiff’s primary claim, the determination as to the claim for damages against Defendant GambCC, NoD, LB, and KE

The reasoning for this Court’s explanation is as stated in Paragraph 5 of Article 420 of the Civil Procedure Act, except for the following additions, and therefore, this part is acceptable by the main text of Article 420 of the Civil Procedure Act.

◎ 제1심 판결문 제17쪽 제8행 아래에 다음과 같은 내용을 추가한다.

Since Defendant ParkCC led to the confession that “The Plaintiff is not the Plaintiff’s agent at the instant party’s newspaper,” this Court has to recognize the above facts as it is. However, on November 19, 2014, Defendant ParkCC appeared at the fourth day of the instant trial, which was not the Plaintiff’s agent, and the title truster of the instant real estate, who was not the Plaintiff’s agent, has the right to receive the purchase price corresponding to the Plaintiff’s share, and thus, stated that the Plaintiff’s claim should be dismissed is apparent in the record. Since Defendant ParkCC’s statement in the above party’s newspaper appears to be a statement to the effect that it was not the Plaintiff’s agent but the right to receive the purchase price in substance, it is difficult to view the above statement as a confession unfavorable to Defendant ParkCC. The facts subject to confession are limited to the principal facts, and that “Defendant ParkCC is not the agent of the Plaintiff,” and thus, the Plaintiff’s assertion on indirect facts or support is without merit.

7) The Plaintiff asserts that, although Article 1 of the sales contract (No. 1-1 of the evidence A), the seller and the buyer agreed to pay the purchase price in the presence of a licensed real estate agent, the buyer paid the purchase price to Defendant ParkCC, which is merely a non-authorized agent in violation of the above agreement. However, as seen earlier, the Plaintiff delegated the right to receive the purchase price to Defendant ParkCC, and as such, Article 1 of the sales contract (No. 1-1 of the evidence A) of the real estate of this case provides, “The purchase price of this case shall be paid in the presence of the licensed real estate agent, unless otherwise stipulated,” it appears that the above different provisions can be determined by the agreement between the parties to the sales contract of this case, and since the preparation of the above sales contract, No. 1-2 and No. 3 of the certificate No. 1-2 of this case and No. 3 of this case, there is no reasonable ground to deem that the Plaintiff delegated the right to receive the purchase price of this case to Defendant ParkCC and the Plaintiff’s 1-2 of this case to receive the purchase price of this case.

7. Conclusion

Therefore, among the plaintiff's main claims in this case, the claim for restitution of unjust enrichment against the defendant Republic of Korea and the claim for damages against the defendant Park PCC, NoDD, LB, and Han E (except for the extended part in the trial) are all dismissed. Since the part concerning each of the above claims in the judgment of the court of first instance is just in conclusion, the plaintiff's appeal against this part is dismissed as it is without merit. The plaintiff's appeal against this part among the main claims in this case added in the trial of the court of first instance is dismissed as it is unlawful, since the part concerning the claim for cancellation of the disposition of transfer income tax and the claim for cancellation of the sales contract, the ancillary claim, and each of the plaintiff's interim confirmations raised in the trial of the court of first instance are unlawful, and all of them are dismissed as it is so decided as per Disposition. The part concerning