Youngju District Court Cheongju District Court 2013Kadan1302

It is difficult to deem that administrative disposition has reached the degree of being deemed to have lost objective legitimacy by neglecting objective duty of care.

It is difficult to conclude that the phrase of the instant judgment at the time of the disposition alone is an agreement to restore the original state due to the rescission of agreement, an agreement on the transfer of security, or an ex post facto redemption condition while maintaining the validity of a sales contract, and thus, it cannot be deemed that the administrative disposition by the public official in charge of the Defendant loses objective legitimacy in light of the general public’s standard.

Civil Procedure Act

2013Na25867

Note XX

Korea

Youngju District Court 2013Kadan1302 ( August 16, 2013), Youngju District Court 201

October 7, 2014

November 7, 2014

1. The plaintiff's appeal and the selective claims added in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

From November 27, 2012 to the delivery date of a copy of the complaint of this case, the defendant shall pay to the plaintiff 000 won with the amount of 5% per annum and 20% per annum per annum from the next day to the day of complete payment (the plaintiff shall be liable for damages on the ground that the disposition taken by the defendant as seen below and the receipt of the defendant's dividends based thereon are illegal, and the plaintiff shall be selectively added to the claim for damages on the ground that the omission by the defendant against the request for correction of the disposition of capital gains tax by the plaintiff is illegal at the trial).

1. Basic facts

가. 인천 ㅁㅁ구 ㅇㅇ동 70-123 외 3필지 지상 PP아파트 35동 302호(이하 '이 사건 아파트'라 한다)에 관하여 1995. 7. 15. 원고 명의의 소유권이전등기가 마쳐진 이래로 2005. 7. 5.까지 다음과 같은 등기가 마쳐졌다.

① On May 16, 200, the registration of the establishment of chonsegwon made on May 7, 2002 with the term of the lease on a deposit basis, May 7, 2002, and on March 13, 2002, ② On March 13, 2002, the registration of the establishment of chonsegwon was cancelled, and the maximum debt amount is KRW 000,000, the debtor, the plaintiff, the mortgagee, the YB Co., Ltd. (hereinafter “Korea bank”) divided into the following banks.

으로 하는 근저당권설정등기 ③ 2002. 3. 29. 조BB을 가등기권리자로 하여 2002. 3. 18.자 매매예약을 원인으로 한 소유권이전등기청구권 가등기 ④ 2004. 10. 25. 인천 ㅁㅁ구를 권리자로 하는 압류등기 ⑤ 2005. 6. 16. 채권최고액 200,000,000원, 채무자 원고, 근저당권자 최WW으로 하는 근저당권설정등기

B. While the Plaintiff leased the instant apartment at KRW 000,00 with the lease deposit at KRW 200,000, the Plaintiff concluded a sales contract with the Plaintiff to sell the instant apartment at KRW 000,000 (hereinafter “the instant sales contract”). On July 5, 2005, the Plaintiff concluded the sales contract with the Plaintiff to sell the instant apartment at KRW 200,000 among the above sales price to the Plaintiff (hereinafter “the instant sales contract”). The instant sales contract accepted the secured debt of the establishment registration of a neighboring mortgage under the above paragraph (a) (2), and the remainder,00,000 won was deducted from the above lease deposit to the Plaintiff, and each of the remainder, of the above lease deposit, was paid to the Plaintiff by the agreement to sell the instant apartment at KRW 40,000,000,000 among the above lease deposit, and the provisional registration was made to the Plaintiff on May 1, 205, 2005.

C. On September 16, 2005, the Plaintiff secured debt of the registration of the establishment of a neighboring mortgage.

the contract of this case was terminated due to the failure to accept it, the notice shall be sent to the next DoD.

Around that time, the highest letter reached the next DD.

D. After that, on September 20, 200, CC borrowed 0000 won from KR Bank (hereinafter "KR Bank"), KR has completed the establishment registration of the apartment of this case with respect to the debtor, CC, the maximum debt amount, 000 with respect to the apartment of this case, and the above loan of this case was repaid and the cancellation registration of the establishment registration was completed on September 28, 2005. The plaintiff filed on September 20, 2005 with the AO District Court for the cancellation of the establishment registration of the right to claim the cancellation of the ownership transfer registration based on the special contract for repurchase on July 5, 2005. The plaintiff filed an application for provisional disposition of this case with 200OD 205, 205, 205, 205OD 205, 305, 205, 205, 205, 205, 205, 205, 2005.

F. On December 1, 2005, the Plaintiff, the teaD, and the teaCC drafted a written agreement (No. 10, hereinafter referred to as the “instant agreement”) with respect to the instant apartment, and the main contents of the instant agreement are as follows.

① The transfer registration of ownership that has been completed in the name of tea with respect to the apartment of this case is made security of KRW 000 as the lease deposit (CC, etc.).

② The lease term is from December 1, 2005 to November 30, 2007. At the same time, the Plaintiff paid KRW 000 to the tea and tea, and at the same time, the tea transfer the apartment of this case to the Plaintiff and implement the procedure for the cancellation of ownership transfer registration in its name.

(3) Expenses incurred in the registration of transfer of ownership in the name of tea and acquisition tax and property tax shall be borne by the plaintiff.

④ ② The Plaintiff shall bear the interest accrued from August 2005 for the secured debt of the right to collateral security, from October 2005 for the loan funds of the above KK Bank, from November 2005 for the loan funds, and from November 2005 for the secured debt of the right to collateral security, and from September 2005 for the amount loaned from KK Bank and from September 2005 to November 2005 for the remainder of the secured debt of the right to collateral security.

(5) Diplomatics shall withdraw an order to file a suit with the O District Court 2005Kags3859.

6. The name of the apartment of this case is in the name of the next DoD, but in fact it is confirmed that the next CC is the owner.

G. The plaintiff asserted that the agreement on December 1, 2005, which was later pending in the revocation lawsuit of this case, should be revoked by means of fraud or coercion. On August 17, 2006, the plaintiff asserted from the OO district court on August 17, 2006 that "The next D has arrived on December 1, 2007" in accordance with the terms and conditions of the above agreement.

After receiving KRW 0000, the Plaintiff was partly rendered a favorable judgment to the effect that “The Plaintiff shall perform the registration of cancellation of ownership transfer registration file completed by the receipt No. 57066 of July 7, 2005 with respect to the instant apartment”.

H. The judgment of the court below (S High Court Decision 2006Na84203 (Main Lawsuit), 2006Na84210 (Counterclaim)) was appealed, and on July 9, 2007 between the plaintiff, the plaintiff, the next-party CC, and the next-party CC received KRW 000 from the plaintiff until November 30, 2007, and at the same time the plaintiff received the payment of KRW 000 from the plaintiff until November 30, 2007, the registration of ownership transfer was made in the name of the plaintiff with respect to the apartment of this case. The obligation to be secured by the collateral security interest (principal KRW 00 million) of the KK Bank established on the apartment of this case was established on December 1, 2007 (hereinafter referred to as the "instant mediation").

자. QQ세무서장은 원고와 차DD 사이의 이 사건 아파트에 관한 소유권이전으로 인한 원고의 소득을 소득세법에 의한 양도소득세 부과대상으로 파악하고, 2010. 9. 1. 같은 달 말일까지로 납기를 정하여 원고에게 양도소득세 0000원, 신고불성실 가산세 000원, 납부불성실 가산세 00원 총 00000원의 부과처분(이하 '이 사건 부과처분'이라 한다)을 하였다.

j. After the instant conciliation, the nextCC paid 000 won to the principal of the loans from KK Bank from December 1, 2007. From December 26, 2007 to April 27, 2009, the Plaintiff paid 000 won interest. Since the Plaintiff failed to perform its duty under the instant conciliation, the next DD and the nextCC filed a lawsuit against the Plaintiff with the UO district court (OO district court 2010 Gohap927 hereinafter referred to as the “instant acquisition lawsuit”). On August 10, 2011, the above court acquired the ownership transfer registration of the instant apartment from DD to July 9, 2007, for the period from 00 to 0.0 % interest rate of 10% interest rate of 0% on the instant apartment and 10% interest rate of 10% on each of the instant apartment and 20.0% interest rate of 10% on each of the instant apartment and 200% interest rate of 10.0%

(k) On November 22, 201, according to the judgment on the instant acquisition lawsuit, the teaCC received a decision to commence compulsory auction from the OO district court (OO district court 201Ma72082), and in the above auction procedure, the apartment of this case was sold at KRW 000,000, and on November 27, 2012, on the date of distribution, the distribution schedule was prepared to distribute 000,000 won to the Defendant as the third tax claim holder upon the instant disposition of this case (hereinafter “the instant dividend”), DD, and tea to the Defendant as the fourth general creditor, each of the instant general creditors.

(l) The Plaintiff did not report and pay the transfer income tax to the Defendant after the registration of ownership transfer was completed or auctioned in the future of the Plaintiff, and the Defendant did not have issued a disposition to impose the transfer income tax.

파. 원고는 QQ세무서장을 상대로 이 사건 부과처분과 관련하여 HH지방법원에 부작위위법확인소송(HH지방법원 2014구합10337)을 제기하였으나, 원고는 2014. 6. 3. 그 소송을 취하하였다.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 7 through 24

Each entry, the whole purport of the pleading, including

2. Judgment on the defendant's main defense

The Defendant stated in the Plaintiff’s written application for modification of the purport and cause of the claim on June 9, 2014.

Defendant’s omission in filing an application for rectification of capital gains tax, Recognizing that such omission is illegal.

In the statement that "the defendant recognizes that the omission of the defendant against the plaintiff's request for correction of the disposition imposing capital gains tax is illegal," the defendant asserts that the plaintiff's request for confirmation of illegality of omission against the defendant cannot be asserted as a civil lawsuit, and that the plaintiff's request for this part of the claim should be dismissed as illegal.

살피건대, 원고는 소장에서부터 이 사건 매매계약이 2005. 12. 1. 합의해제로 그 효력이 소멸하였음에도 불구하고 피고가 양도소득세 부과처분을 한 것이 위법하다는 취지의 주장을 해 온 사실, 원고는 2014. 4. 2. QQ세무서장을 상대로 별도로 HH지방법원 2014구합10337호로 부작위위법확인소송을 제기한 사실, 원고의 2014. 4. 21.자 청구취지 및 청구원인변경신청서에서는 위 행정소송이 계류 중임을 이유로 변론재개를 신청하면서 "양도소득세 부과처분 경정청구에 대한 피고의 부작위는 위법임을 확인한다"고 청구취지를 변경하였다가, 위 행정소송 취하 후에는 "위법임을 인정하여 ... 손해배상을 하라"는 취지로 청구취지를 변경한 사실은 이 법원에 현저하다. 이에 비추어 보면 원고의 청구취지 중 "피고는 원고의 양도소득세 부과처분 경정청구에 대한 피고의 부작위는 위법임을 인정하여"라는 부분은 이 사건에서 원고가 구하고 있는 원고의 양도소득세 부과처분 경정청구에 관한 피고의 부작위가 위법임을 원인으로 하는 손해 배상청구와 별개의 청구로 보기 어려우므로, 피고의 본안전 항변은 이유 없다.

3. Judgment on the merits

A. The plaintiff's assertion

The sales contract of this case was rescinded by agreement or mediation of this case on December 1, 2005, and Park NN, who was a public official of the defendant, was "No need to report transfer income tax" to the plaintiff. The defendant arbitrarily issued the disposition of this case, and the defendant did not object to request for correction of transfer income tax, but did not object to the plaintiff.

B. Determination

1) Relevant legal principles

Even if any administrative disposition is revoked after an administrative disposition, it cannot be determined that the pertinent administrative disposition is caused by the intention or negligence of the public official immediately and constitutes a tort by virtue of res judicata. In a case where the public official in charge of such administrative disposition generally holds that it is recognized that such administrative disposition has lost objective legitimacy by neglecting objective duty of care, it shall be reasonable to deem that the public official in charge of such administrative disposition satisfied the requirements for State liability under Article 2 of the State Compensation Act. In such a case, whether it has lost objective legitimacy should be determined by taking into account all the circumstances, such as the type and nature of gains from infringement, the form and reason for the administrative disposition that constitutes infringement, the degree of involvement of the victim in the exercise of the administrative disposition, and the degree of damage, etc. (see, e.g., Supreme Court Decision 2005Da31828, May 10, 2007).

In addition, since a sales contract for real estate between a real estate seller and a buyer has been terminated by agreement, the validity of the sales contract is lost, and the transfer of assets is not carried out, it cannot be deemed that there is a transfer of assets, which are tax requirements of capital gains tax (see, e.g., Supreme Court Decisions 83Nu91, Apr. 26, 1983; 90Nu1991, Jul. 13, 1990; 91Da3540, 3557, Dec. 22, 1992; 91Da3540, 3557, etc.); and the transfer of assets for the purpose of securing debts cannot be deemed a transfer of assets subject to capital gains tax (see, e.g., Supreme Court Decision 83Nu120, May 24, 1983).

2) Relevant statutes

Article 45-2 of the Framework Act on National Taxes

(2) A person who has filed a tax base return by the statutory deadline for return, or determination of the tax base and amount of national taxes.

Where any of the following grounds arises, a person who has been well aware of such grounds may request the determination or correction within two months from the date he/she becomes aware of such grounds, notwithstanding the period referred to in paragraph (1):

1. Where the transaction, act, etc. which forms the basis of calculation of the tax base and the amount of tax in the initial return, determination or correction is confirmed as a different one by a final judgment (including any reconciliation or other act having the same effect as the judgment) in the lawsuit against it;

2. Where a determination or correction exists, converting the ownership of the income or other taxable object to a third person;

3. Where mutual agreement under a tax treaty has been reached differently from the details of the initial return, determination, or correction;

4. Where the tax base and amount of the national tax initially returned for the taxable period other than the taxable period subject to the decision or rectification, due to such decision or rectification, exceed the tax base and amount to be returned under the tax-related Acts;

5. Where the ground similar to those referred to in subparagraphs 1 through 4 and prescribed by Presidential Decree, occurs after the statutory due date of return of the national tax expires.

Article 25-2 (Ex Post Factor Causes)

"Grounds prescribed by Presidential Decree" in Article 45-2 (2) 5 of the Act means any of the following cases:

2. Where a contract related to the validity of a transaction or act, etc. which forms the basis for calculating the tax base and the amount of tax, is cancelled by the exercise of the right to cancel or is cancelled or cancelled due to unavoidable reasons that occur after the relevant contract is concluded when the first return, determination

4. Where other grounds corresponding to subparagraphs 1 through 3 exist.

3) Determination as to the instant disposition and the subsequent unlawful assertion of dividend

A) Determination as to whether the instant disposition was unlawful

(1) On July 5, 2005, the Plaintiff entered into the instant sales contract between the Plaintiff and the nextD on July 5, 2005, and the Plaintiff notified the Plaintiff on September 16, 2005 that the instant sales contract was terminated on the grounds of the Plaintiff’s nonperformance of obligation of the nextD, and that the Plaintiff, the Plaintiff, the nextD, and the nextCC entered into an agreement on December 1, 2005, confirming that the instant apartment was transferred to the nextD’s name in order to secure the right to lease on a deposit basis equivalent to KRW 000 of the nextCC, etc. as of December 1, 2005, and that the Plaintiff received the ownership registration procedure for the instant apartment after receiving KRW 000 from the Plaintiff upon the arrival of December 1, 2009, as seen earlier.

In light of the above facts, there is no room to deem that the Plaintiff and the nextD agreed to cancel the instant sales contract by concluding an agreement on December 1, 2005 between them and to convert them into a security for transfer for the purpose of securing the claim for the refund of lease deposit such as teaCC, etc. under the name of nextD.

(2) On the other hand, the following facts or circumstances can be acknowledged in full view of the statements in Gap evidence Nos. 1, 2, 7, and 24 and the testimony of ParkNN as well as the purport of the entire pleadings.

① Under the instant agreement, the instant apartment building is not owned by 'Plaintiff', but owned by 'PCC'. After the registration of ownership transfer was completed in the name of DoD with respect to the instant apartment, there was a change in the right of a third party, such as the extinguishment of the limited real right and seizure before the instant sales contract and the creation of a new limited real right.

② In relation to the instant revocation suit, the Plaintiff asserted the validity of the Plaintiff’s agreement on December 1, 2005, the second instance court (SS High Court 2006Na84203 (Main suit), 2006Na84210 (Counterclaim)) (SS High Court 2006Na84203 (Main suit), and agreed that only if the Plaintiff pays more than two times the lease deposit amount to be paid pursuant to the said agreement, the Plaintiff shall be able to obtain the registration procedure for the transfer of ownership regarding the instant apartment, and further, the borrowed money in the name of CCC shall also be acquired by the Plaintiff.

③ From July 7, 2005 to November 8, 201, 201, the Plaintiff had the title of registration of ownership transfer for the apartment of this case from July 7, 2005 to November 8, 201 (5 years until the time of the disposition of this case).

④ Until the auction process of the apartment in this case, the tead and the teaCC never asserted that the apartment in this case was a mortgagee, and applied to the general creditor, who is more unfavorable than the mortgagee, participated in the distribution.

⑤ Although the Defendant did not submit a document related to the business at the time of the instant disposition, Park NN, a public official of the Defendant who performed the duties at the time, was submitted the documents from the Plaintiff and examined the basic rules of the Income Tax Act, etc., and subsequently, issued the instant disposition upon agreement and approval with the senior chief, director, and secretary at the time.

④ There is little possibility that the said ParkN had made a statement to the effect that the said ParkN would not pay transfer income tax to the Plaintiff on the sales contract of the instant case, because it was around 2010 when it had worked for the said ParkN in the territory of the Defendant’s territory with the property tax.

In light of the above contents and progress of the conciliation of this case, the act of the tea or teaCC before and after the disposition of this case, the process of the cancellation lawsuit of this case and the acquisition lawsuit of this case, the process of the public official in charge of the defendant's affairs, the mediation of this case or this case, the cancellation lawsuit of this case or the written decision of the acceptance lawsuit of this case, alone, there is an aspect that it is difficult to conclude that there was an agreement between the plaintiff and the nextD on the restoration due to the cancellation of agreement, whether there was an agreement on the transfer of security, or whether there was an ex post determination of the terms of redemption while maintaining the validity of the sales contract of this case, the fact acknowledged in the above (1) alone cannot be deemed to have reached the extent that the administrative disposition of this case was deemed to have lost objective legitimacy by failing to perform an objective duty when considering the general public official's standard. There is no evidence to acknowledge

B) Whether the receipt of the instant dividends is illegal

Furthermore, even if the disposition of this case is unlawful, as alleged by the Plaintiff, the disposition of this case is unlawful under Article 45-2 (2) 5 of the Framework Act on National Taxes and Article 25-2 (2) 2 and 4 of the Enforcement Decree of the Framework Act on National Taxes, in the case where the Plaintiff did not file a claim for correction within two months, the disposition of this case cannot be asserted any longer due to the nature of the distribution of the request for correction, and the disposition of this case becomes effective and binding as an effective administrative act. Thus, as long as the Defendant received the dividend of this case pursuant to the disposition of this case, it cannot be deemed unlawful.

C) Sub-decision

Therefore, this part of the Plaintiff’s assertion that the Defendant’s disposition of this case is unlawful is without merit.

4) Determination on the Defendant’s allegation of illegality in omission regarding imposition of capital gains tax

However, it is insufficient to acknowledge that the Plaintiff filed a claim for correction with respect to the disposition of this case on the sole basis of the statement of Gap evidence Nos. 1 through 26 (including each number), submitted by the Plaintiff, and there is no other evidence to acknowledge it. Thus, this part of the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, each of the claims of the plaintiff in this case shall be dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance which dismissed the claim for damages due to the disposition of this case and the receipt of dividends of the defendant based on the disposition of this case are justified in conclusion. Accordingly, the plaintiff's appeal and the judgment of the court of first instance that dismissed the claim for damages due to the defendant's omission as to the claim for correction of the disposition of transfer income tax which was selected in