Plaintiff (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

The Minister of Justice (Attorney Kim Jae-hoon, Counsel for defendant-appellant)

October 28, 2011

1. The Defendant’s disposition of prohibiting departure against the Plaintiff on June 17, 2011 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is delinquent in national taxes of KRW 665,937,580 in total as follows.

(1) Income tax on April 30, 2003, a mid-term tax secretary at the district tax office having jurisdiction over the tax base on July 31, 2009, a mid-term tax secretary at the district tax office having jurisdiction over the tax base on the tax base on the tax base on the tax base on the tax base on the tax base on July 31, 2009;

B. On June 17, 201, when the Commissioner of the National Tax Service requested the Defendant to prohibit departure on the ground that the Plaintiff was delinquent in national taxes, the Defendant issued a disposition to prohibit departure for six months on the ground that the Plaintiff was delinquent in national taxes pursuant to Articles 4 and 4-4(1) of the Immigration Control Act (hereinafter “instant disposition”).

[Ground of recognition] The fact that there is no dispute, Gap's evidence Nos. 1 and 2, and the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In light of the following, the instant disposition did not meet the statutory requirements.

(A) Article 4(1)5 of the Immigration Control Act provides that a person who fails to pay a national tax of at least 50 million won without justifiable grounds may be prohibited from departing from the Republic of Korea. However, it is entirely not deemed that the Plaintiff is fully responsible for the capital gains tax that was originally defaulted. Moreover, the Plaintiff’s failure to pay capital gains tax due to his/her failure to pay the capital gains tax is included in “justifiable cause” under the aforementioned provision.

(B) According to Article 7-4(1) of the National Tax Collection Act and Article 10-5(2) of the Enforcement Decree of the same Act, a person subject to a request for prohibition of departure should be “a person who is deemed likely to evade a disposition on default.” However, since the Plaintiff was suspected of hiding property for the purpose of evading a disposition on default since 2002, or was found overseas or remitted funds abroad, there was no reason to be recognized as a person who is likely to be recognized as such

(C) In addition, according to the above provision of the National Tax Collection Act, “a person whose number of overseas entry and departure is at least three times from the date of requesting the prohibition of departure for the last one year in excess of 50,000 won” is stipulated as a person subject to the request for prohibition of departure without any justifiable reason. However, the Plaintiff is engaged in a foreign trade to connect domestic construction enterprises with middle-dong construction enterprises, or is the chief director of the non-party 3 educational foundation, and thus, constitutes “justifiable cause”.

(2) The purpose of the disposition of prohibition of departure is not to prevent departure from spreading abroad or beyond the prescription period, but to prevent it from making it difficult to enforce compulsory execution due to the escape of property abroad, etc. However, the instant disposition taken in the state that the Plaintiff had no property concealed through an extensive investigation for a prolonged period of time is not compatible with the purpose of the disposition.

(3) The instant disposition cannot be deemed as a means suitable for the purpose of preventing the Defendant from having difficulties in compulsory execution, such as the Defendant’s acquisition or exemption of property, and it cannot be said that there is a reasonable proportional relationship between the degree and purpose of infringement by the disposition, and thus is contrary to the principle of proportionality.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff’s failure to pay national taxes

In around 1998, the Plaintiff, as the representative director of the non-party 1 corporation, set up a collateral in order to secure the repayment of the obligation to the Seoul Bank of Seoul Bank, and as the above real estate was sold by the application for voluntary auction by Korea Asset Management Corporation, which is the transferee of the collateral security, four capital gains tax was imposed between 2002 and 2003, and one capital gains tax was imposed in 2009.

(2) The Plaintiff’s property status

With respect to the above capital gains tax, each tax authority seizes a forest of 387 square meters in the south-gun, Chungcheongnam-gun, which remains in the current name of the Plaintiff; a forest of 387 square meters in the name of the Plaintiff; a forest of 476 square meters in the Yan-gun, a forest of 57 square meters in the Yannam-gun, a forest of 476 square meters in the Yan-gun, and a 350 square meters in the Yan-gun, Gyeonggi-gu, and

(3) Status of departure from Korea after the Plaintiff’s default of national taxes

The number of votes included in the main sentence shall be two times in 202, 4/22-4/27, 6/6/18/18, 4/21-5, 6/13-6/22, 8/10-8/25, 11/10-10-11/18/204, two times in 2005 (from January 8, 2004 to July 13, 2004), 8/18-18/22, 12/31 to 31-22, 12/31 to 31-29/206, three times in 206, three times in 207, three times in 208/3/29 to 3/26/28-1 to 3/28/28/128/21 to 214/28/16/202/16/202.

(4) The plaintiff's overseas activities

The plaintiff, around 2002, has been in China in order to make orders for the project of the number of South and North China. Around June 2003, the plaintiff visited the means of Africa to conclude the Round of the Round of the Sea Corporation (MOU). The plaintiff visited Hong Kong for the international academic exchange between ○○○○○ University and the Hong Kong Arts University. In addition, the plaintiff also promotes various academic exchanges with foreign universities, such as the main university, California, and California.

【Evidence of Recognition, Evidence Nos. 17 (including paper numbers; hereinafter the same shall apply), Evidence Nos. 29, 39, Evidence Nos. 1 and 7, and the purport of the whole pleadings

D. Determination

(1) In full view of the purport of Article 4(1)5 of the Immigration Control Act, Article 1-3 of the Enforcement Decree of the Immigration Control Act, and Articles 2 and 9 of the Rules on the Handling of Prohibition of Departure, the main purpose of the prohibition of departure is to prevent a delinquent taxpayer from making it difficult to enforce compulsory execution due to a delinquent taxpayer’s default of national taxes of 50 million won or more due to his/her departure from Korea. However, the mere purpose of the prohibition of departure is to prevent a delinquent taxpayer from departing from Korea to a foreign country or staying in a foreign country without returning to Korea during the term of prescription, and to prevent the expiration of the term of prescription. Thus, the immediate disposition of prohibition of departure is not allowed in light of the principle of excessive prohibition, without confirming whether the delinquent taxpayer’s property is likely to escape abroad. On the other hand, whether the delinquent taxpayer is likely to escape abroad shall not deviate or abuse his/her discretion in the determination of whether the delinquent taxpayer’s national tax, the delinquent taxpayer’s family’s age, age, social or economic activity or the amount of national tax revenue and property, etc.

(2) According to the health class, evidence Nos. 3 through 6, and evidence Nos. 8 and 9 as to the instant case, ① the Plaintiff was in office as a director of the school juristic person of Nonparty 3 and her children, and paid a high amount of wages to the Plaintiff’s living abroad, ② the Plaintiff purchased real estate or high-class automobiles around 2006 without any particular income, ③ the Plaintiff was living in the office of ○○○○ University as contrary to the Private School Act. However, the facts acknowledged above are revealed, and there were other circumstances revealed in the instant argument, namely, there was a considerable time to find the Plaintiff’s property after the imposition of capital gains tax, and the Plaintiff had been living abroad from time to time, and there was no possibility that the Plaintiff could have concealed or concealed the Plaintiff’s property out of Korea (i.e., the Plaintiff’s property out of Korea) prior to departure from Korea, and (ii) there was no possibility that the Plaintiff could have been able to find out the Plaintiff’s property out of Korea due to lack of personal history or circumstances prior to departure from Korea.

(3) In addition, according to the above facts, although the plaintiff was found to have left the Republic of Korea three times within one year prior to the request of the Commissioner of the National Tax Service for prohibition of departure, there is no evidence to acknowledge that all of them is departure without any justifiable reason, and otherwise, the request of the Commissioner of the National Tax Service for prohibition of departure against the plaintiff is deemed not to meet the requirements under the National Tax Collection Act since it does not meet the requirements for the request for prohibition of departure under Article 7-4(1) of the National Tax Collection Act and Article 10-5(2) of the Enforcement Decree of the same Act. Thus, in the language of Article 4(1) of the Immigration Control Act, although the defendant is deemed to be able to prohibit the prohibition of departure without the request of the Commissioner of the National Tax Service for prohibition of departure from the Republic of Korea, it is practically impossible to actually prohibit the prohibition of departure from the Republic of Korea due to the lack of the request of the Minister of Justice for prohibition of departure from the Republic of Korea due to lack of Korea's national taxes or property overseas.

3. Conclusion

The plaintiff's claim is justified, and the costs of lawsuit are assessed against the losing party.

[Attachment Form 5]

Judges Jindo (Presiding Judge)