Even if an administrative disposition is unlawful, it does not deny its effect without permission on the ground of its defect, unless the defect is a significant and obvious case.

Unless the defect in an administrative disposition is deemed null and void as a matter of course due to its significant and apparent nature, no validity of the administrative disposition can be denied without permission on the ground of its defect. Although the fairness of such administrative act is not the same as res judicata of the judgment, if the defect in the administrative act within the objective scope of the impartiality is merely a ground for revocation, the validity of the disposition cannot be denied unless the disposition is revoked.

Article 741 of the Civil Act: Contents of Unjust Enrichment

2014 Gohap 11353 Compensation, etc.

OO

Republic of Korea and one other

June 9, 2015

June 18, 2015

1. The plaintiff's claims against the defendants are all dismissed.

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

Cheong-gu Office

For the Plaintiff, the Defendant Republic of Korea shall pay 3,359,854,680 won and 147,624,390 won among them, from June 1, 2006 to 96, 182,590 won, from May 31, 2007 to 1,611, 632,920 won, from October 19, 2009 to 635, 414, 790 won with 5% interest per annum from April 6, 2010 to the delivery date of a copy of each complaint of this case; for 20% interest per annum from 264,343,130 won; for 136,097,4200 to 136,47,9700 won; for 200 to 250% interest per annum from the next day to the day of full payment; for 20% interest per annum from 209 to 250.1,63819

1. Facts of recognition;

A. On June 24, 1995, the Plaintiff, as a non-profit culture and arts organization, entered into a construction contract with AAA Construction Co., Ltd. (hereinafter referred to as "AA Construction") on April 23, 1996 in order to acquire OO-O-O site area (hereinafter referred to as "the instant land") on the above ground and build O-O site on the above ground with OO-O site size of OO-O site on the above ground (hereinafter referred to as "the instant building"). From the 25th of the same month, the Plaintiff, as a non-profit corporation, entered into a construction contract with the AA Construction Co., Ltd. (hereinafter referred to as "the instant new construction") on the 25th of the same month (hereinafter referred to as "the scheduled date of completion").

B. The Plaintiff’s own cash, national subsidies (the Plaintiff received 16.5 billion won from September 18, 1996 to November 14, 1998 with the national subsidies necessary for the construction of the instant building), and a plan was planned to prepare the instant building as a security deposit to be leased after the construction of the instant building, and 30% of the construction cost (11.7 billion won) shall be paid in accordance with the process, reflecting the Plaintiff’s plan for the procurement of the construction cost, and the remainder of 70% (27.3 billion won) shall be allocated with the security deposit for the instant building.

C. However, after the IMF relief financial situation, AA Construction expressed its position that it is difficult to normally perform the above construction work from around 1998, and the Plaintiff extended the scheduled date of completion of the construction work of this case on October 19, 198 to December 25, 200, and ② paid 40% of the construction cost according to the process and appropriated 60% of the remainder as a security deposit.

D. However, on March 201, 199, the company improvement work for AA Construction commenced, and as a result, the new construction work of this case was suspended on May 13, 1999, which was about 53%. Although the Plaintiff urged AA Construction to implement the construction contract several times, the Plaintiff was not resumed after December 25, 200, which was the scheduled date of completion changed due to the reasons, such as the workout program of AA Construction and the decline in real estate, and the Plaintiff terminated the construction contract with AA Construction on June 20, 201. At the time, the obligation for the construction work unpaid by the Plaintiff at the time was about 3.5 billion won.

E. On November 16, 2006, the Plaintiff concluded a new construction resumption contract with BB Construction Co., Ltd. (hereinafter “B Construction”), which accepted the condition that construction costs, etc. will be first invested in 10 billion won, while it is difficult to resume the instant construction only with cash that it can be secured by itself, and entered into a new construction resumption contract with BB Construction Co., Ltd. (hereinafter “instant construction contract”) with the content that the construction cost will be 31.8 billion won between the construction cost and BB Construction, and the construction cost will be 10 billion won first invested from BB Construction (hereinafter “instant special agreement”).

applicable regulations

Details

Article 20(1)

"A" means a loan from a financial institution, etc. (the instant land) as security after the conclusion of a contract to secure construction capital, for at least 30 billion won, and "B" (B Construction) will provide joint and several sureties in relation thereto.

Article 21(3)

“B” (B) deposited in a bank account jointly managed with “A” (the Plaintiff) prior to the commencement of the construction project, and then lend the funds with no interest-free funds from the Plaintiff’s progress payment funds, and use the funds as project costs until the transition of the secured loan.

Article 21(4)

"A" if "A" fails to raise funds under paragraph 1 of Article 20 (including where it is partially impossible to do so)," (B) "B" shall secure the public funds under paragraph 1 of Article 20 and promote the project within 30 days.

F. The Plaintiff, according to the instant special agreement, sought a loan for the instant land as collateral, but did not reach any limit, demanded that the project cost of KRW 10 billion be invested in BB Construction pursuant to Article 21(4) of the instant special agreement, but BB Construction failed to comply with it for a considerable period of time. On the other hand, AA Construction applied for a compulsory auction on the instant land on July 20, 2007, based on the claim for the amount receivable for the construction cost against the Plaintiff, and the Seoul Southern District Court 2007 another OOOO (Seoul Southern District Court 2007) started compulsory auction procedure.

G. The Plaintiff received approximately KRW 4.7 billion out of the project cost incurred under the instant special agreement from BB Construction, and repaid the unpaid construction cost to AA Construction with the said money. On February 12, 2008, the Plaintiff cancelled the registration of the decision to commence compulsory auction by A Construction.

H. On May 29, 2008, the Plaintiff agreed to implement the instant construction again with BB Construction, and notified the head of Yangcheon-gu of the commencement of the construction of the instant building at the time of applying for reduction of property tax on the instant land. On May 29, 2008, the Plaintiff notified the head of Yangcheon-gu of the commencement of the construction of the instant building at the time of the commencement of the construction of the building, and ordered BB construction to start the construction at first priority for cleaning and maintenance in the site, and for supplementing the water leakage and the safety facilities. On November 4, 2008, the Plaintiff filed an application for change of the construction with the head of Yangcheon-gu Office to reduce part of the total floor area of the instant building on December 30, 2008, and received the building permit following the design change.

I. However, BB Construction did not bring about about 5.3 billion won of the remaining amount of investment under the instant special agreement, and performed part of the safety diagnosis and cleaning services required due to the installation of an office at the construction site of this case and the long-term suspension of construction. However, around September 2008, BB Construction did not perform the additional construction as the price of assets, such as real estate, in Korea, due to a chain effect under the Human Investment Bank Bankruptcy Act, which is a large investment bank of the United States.

(j) On December 12, 2008, the Plaintiff urged BB Construction to perform the obligation of deposit of 10 billion won and the contract for construction. However, BB Construction refused to comply therewith, and instead, on January 9, 2009, applied for compulsory auction on the instant land with loans and bonds against the Plaintiff as an executory bond. On April 30, 2009, the Plaintiff and BB Construction decided to return loans and interest and construction cost that the Plaintiff had already received from BB Construction, and the instant contract for construction was rescinded by agreement.

(k) At the time of the cancellation of the above agreement with BB Construction, the Plaintiff prepared a plan to purchase the instant building in lieu of leasing it, and to procure project costs with the sale price. The Plaintiff was invested approximately KRW 18.7 billion from CC Development (hereinafter “CC”) on condition that 47% transfer the right to sell the instant building, and planned to resume the instant construction after returning the national subsidy from the fund. However, the Ministry of Culture and Tourism had the reservation position on the Plaintiff’s plan.

(l) On August 27, 2010, the Plaintiff obtained approval for a loan of 45 billion won from the Ministry of Culture, Sports and Tourism to a financial institution and the decision to grant a national subsidy of 10 billion won. D Construction Co., Ltd. was selected as a contractor and completed the instant building. On November 10, 201, the Plaintiff obtained approval for use from the head of Yangcheon-gu Office.

(1) Defendant Republic of Korea: (a) deemed that the instant land was “building, the construction of which was suspended for not less than 6 months without justifiable grounds”; and (b) notified the Plaintiff of the return and payment of comprehensive real estate holding tax, etc.; (c) on June 1, 2006, Defendant Republic of Korea: (a) deemed that such land constituted a general real estate holding tax subject to aggregate taxation for not less than 6 months; and (d) deemed that such real estate was subject to comprehensive real estate holding tax for not less than 122,012,040 won; (b) 24,402,400 won for special rural development tax for 205; (c) 7,906,350 won for additional taxes; (d) 859,693,670 won for comprehensive real estate holding tax for not less than 206, 171, 938, 730 won for special rural development tax for not less than 205, 2005.

(2) The defendant Yangcheon-gu Seoul Metropolitan Government: (a) deemed that the land of this case was excluded from aggregate aggregate land tax for 6 months or longer; (b) 120,590,190 won for September 12, 2004; (c) 24,118,030 won for local education tax; (d) 17,089,560 won for additional 20,500 won for aggregate land tax around 206; (b) 40,500 won for local education tax; (c) 206,10,000 won for local education tax; (d) 263,563,380 won for special rural education tax; and (d) 206, 207, 306, 406, 207, 209, 205, 306, 306, 306, 306, 206, 11,74, 678

(3) The Plaintiff paid all of the instant taxes at that time.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 6, 10, 11, 14, 15, 16, 17, and 23, the purport of the whole pleadings

2. Relevant provisions;

[Comprehensive Real Estate Tax Act]

(amended by December 26, 2008)

Article 12 (Taxpayer)

(1) Any person liable to pay the property tax on land as of the tax base date who falls under any of the following subparagraphs shall be liable to pay the comprehensive real estate tax on the relevant land

1. In cases of a general aggregate taxation, a person who is in excess of 300 million won (in cases of an individual, referring to the aggregate amount by a household; hereinafter referred to as the "standard amount of taxation for general aggregate taxation on land") the public value of the land subject to taxation located in Korea: Provided, That in cases of an individual, it shall

2. In cases of a special aggregate taxation, a person whose total amount of published prices of the land subject to taxation located in Korea exceeds 4 billion won (hereinafter referred to as the “basic amount for taxation for separate aggregate taxation on land”).

(B) On or after the amendment of December 26, 2008

(1) Any person liable to pay the property tax on land as of the tax base date who falls under any of the following subparagraphs shall be liable to pay the comprehensive real estate tax on the relevant land

1. In cases of a general aggregate taxation, the person whose aggregate amount of the published prices of the relevant taxable land located in Korea exceeds 500 million won;

2. In cases of a special aggregate taxation, the person whose aggregate amount of published prices of the relevant taxable land located in Korea exceeds eight billion won.

[Local Tax Act]

Article 182 (Classifications of Taxable Objects)

(1) Objects of taxation of property tax on land shall be classified into general aggregate taxation, special aggregate taxation and separate taxation.

1. Objects of general aggregate taxation: The land owned by a person liable to pay tax as of the tax base date, excluding the land subject to the objects of special aggregate taxation or separate taxation: Provided, That the land falling under any of the following items shall not be deemed objects

(a) The land on which the property tax is not levied or exempted pursuant to this Act or related Acts and subordinate statutes;

(b) Land equivalent to the ratio of land whose property tax is reduced pursuant to this Act or other Acts and subordinate statutes;

2. Special aggregate taxation: Land attached to a building prescribed by Presidential Decree, which is owned by a taxpayer as of the tax base date, and land prescribed by Presidential Decree, which is of considerable reason for separate aggregate taxation: Provided, That land under the provisions of paragraph (1) 1 (a) and (b) shall not be deemed special aggregate taxation.

Article 190 (Tax Base Date)

The tax base date of the property tax shall be the 1st of June each year.

Article 288 (Reduction or Exemption for Social Organizations, etc.)

(2) Acquisition tax and registration tax shall be exempted for real estate acquired by scientific research organizations, scholarship organizations, technical promotion organizations, cultural and arts promotion organizations, sports promotion organizations, or juvenile organizations which are permitted or authorized by the Government, or which are established or applied pursuant to Acts other than the Civil Act, to use directly for their proper activities, and real estate used directly for their proper activities as of the tax base date shall be exempted from the property tax, urban planning tax, and common facilities tax ( taxes shall be imposed on real estate used by technology promotion organizations and sports promotion organizations without justifiable grounds within one year from the acquisition date thereof): Provided, That if such real estate is not used directly for their proper activities within one year from the date of its use, or if it

[Enforcement Decree of the Local Tax Act]

Article 131 (Scope, etc. of Buildings)

(1) The scope of buildings prescribed in Article 131-2 (1) shall include ground fixtures prescribed by Ordinance of the Ministry of Public Administration and Security, buildings for which six months have not passed from the date of registration of destruction of the building as of the tax base date, and buildings under construction shall be excluded, but the construction period has expired as of the tax base date or has been suspended for

Article 131-2 (Scope of Land Subject to Separate Taxation)

(1) The term "land annexed to structures prescribed by the Presidential Decree" in the main sentence of Article 182 (1) 2 of the Act means the land annexed to structures falling under any of the following subparagraphs: Provided, That the land annexed to the buildings for which permission, etc. is required to be obtained under the related Acts and subordinate statutes, such as the Building Act, and for which permission, etc. is not obtained or for which approval for use is not obtained,

2. Land annexed to structures excluding the land annexed to structures falling under any one of the following items from among the land annexed to structures (excluding the structures for factories under subparagraph 1), which is the land within the scope of area computed by multiplying the floor area of structures (referring to the horizontal plane projection area in the case of installations other than the structures) by the applicable multiple by specific-use areas under paragraph (2):

(a) The land annexed to structures within the land as provided in Article 182 (1) 3 (c) of the Act;

(b) The land annexed to a building, the current base value of which is less than 2/100 of the current base value of the relevant annexed land, excluding the floor area of the building;

3. The plaintiff's assertion

① Despite the Plaintiff’s justifiable cause, deeming that the instant building constitutes a building, the construction of which was interrupted for at least six months pursuant to Article 131(1) of the Enforcement Decree of the Local Tax Act without any justifiable reason, and imposing the instant tax by excluding the instant land from the subject of separate aggregate taxation is null and void as it is serious and clear. Therefore, without any legal cause, the Defendants are obliged to return the amount of the instant tax calculated by deeming the instant land as the subject of general aggregate taxation as the subject matter of aggregate taxation and the amount of the property tax and comprehensive real estate holding tax calculated by deeming the instant land as the subject matter of aggregate taxation, as unjust enrichment.

② Since the Defendants’ imposition of the instant tax, guidance for payment, notice of tax payment, and demand for payment, based on the premise that the instant land is subject to general aggregate taxation, are unlawful, and were negligent in interpreting and applying statutes, such as local taxes, and thus, the Plaintiff is obliged to pay damages equivalent to the difference between the amount of the instant tax calculated by deeming the instant land as subject to general aggregate taxation and the amount of the property tax and comprehensive real estate holding tax

4. Determination

A. Determination on the claim for restitution of unjust enrichment

In order for an administrative disposition to be deemed null and void as a matter of course, the fact that there is an illegality in the disposition is insufficient, and the defect is objectively obvious as it seriously violates an essential part of the law and regulations (see, e.g., Supreme Court Decision 2011Du5001, Feb. 23, 2012). In order to be clear, it should be deemed that the materials based on which the mistake of the facts is based lack of external appearance, or it is evident that the establishment or the authenticity of the contents is impossible to be recognized objectively. If the existence of the defect can be clarified only when the materials on the facts can be accurately examined, such defect is apparent (see, e.g., Supreme Court Decision 2003Du7019, Apr. 16, 2004).

In addition, even if an administrative disposition is unlawful, the effect of the administrative disposition can not be denied without permission on the ground of its defect, except where there is a ground for deeming the defect as null and void due to its significant and apparent defect. Although the validity of the administrative act is not the same as res judicata of the judgment, if the defect in the administrative act belonging to the objective scope of the administrative act is merely a ground for revocation, the validity of the disposition cannot be denied unless the disposition is revoked. If there is room for dispute over the interpretation of the law as to the legal relation or factual relations of the administrative disposition is not clearly revealed, it is merely a mistake of the fact of the disposition requirements even if the administrative disposition was taken by the administrative agency by wrong interpretation and interpretation (see, e.g., Supreme Court Decision 2006Da83802, Mar. 16, 2007). Meanwhile, in a lawsuit seeking the return of the already paid tax amount by claiming the invalidity of the taxation disposition, the plaintiff is liable to assert and prove the ground for invalidity (see, e.g., Supreme Court Decision 2003Du193193.).

In light of the evidence No. 23, the plaintiff filed a lawsuit seeking revocation of each disposition of comprehensive real estate holding tax and special tax for rural development tax for 2008 imposed on the land of this case (Seoul Administrative Court 201Gu ConsolidatedOOOO) against the head of the relevant tax office, and the land of this case constitutes a state where construction was suspended for not less than six months without justifiable grounds, and thus, the plaintiff's winning judgment was revoked on the ground that the taxation disposition based on general aggregate taxation was unlawful, and the judgment became final and conclusive.

However, "Justifiable reason for the suspension of construction" under Article 131-2 (1) of the Enforcement Decree of the Local Tax Act refers to not only the external reason for the suspension of construction, such as the prohibition or restriction of construction under the Local Tax Act, but also the internal reason for the suspension of construction to be inevitable despite the corporation's normal efforts and implementation. Thus, the existence of such "justifiable reason" refers to whether the pertinent corporation is a profit-making corporation, the scale of construction work, the period required for the completion of construction work, the long-term period required for the completion of construction work, the reasons and degree of disability in the laws and regulations which are not capable of carrying out the construction work, whether the pertinent corporation has made efforts to carry out the construction work, whether the relevant administrative agency's cause was attributable to the construction work, etc., and it should be determined individually on a specific basis, depending on the specific case (see Supreme Court Decision 2002Du8398, Dec. 6, 2002). Thus, it cannot be found that there exists a significant and objective reason for the suspension of construction work.

Therefore, the collection and disposition of the tax of this case cannot be deemed to be null and void as a matter of course, and can only constitute grounds for revocation, so the plaintiff's claim on the premise that it is null and void as a matter of course is without merit.

B. Determination as to a claim for damages caused by a tort

Even if an administrative disposition is revoked after any administrative disposition, it cannot be determined that the pertinent administrative disposition constitutes a tort by a public official’s intentional or negligent act. However, in a case where the public official in charge of such administrative disposition’s duty of care is deemed to have lost objective legitimacy by failing to perform objective duty of care, it is 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 the administrative disposition has lost objective legitimacy shall be determined by taking into account various circumstances, such as the form and purpose of the administrative disposition, whether and to what extent of the victim’s involvement, degree of involvement, degree of damage, etc., which are the infringement, and by examining whether the State or local government has a substantial reason to assume responsibility for compensating for damage (see Supreme Court Decision 2008Da30703, Jan. 27, 2011).

In light of the above legal principles, with respect to whether the Defendants’ public officials belonging to the Defendants imposed the instant tax on the Plaintiff, guidance for tax payment, notice of tax payment, or demand for tax payment constitutes tort, the fact that the administrative litigation was rendered and confirmed that the disposition imposing the comprehensive real estate holding tax and special rural development tax for the year 2008 by deeming the instant land as a general aggregate taxation subject to general aggregate taxation was unlawful is as seen earlier. According to the respective statements (including each number) in the evidence No. 16, 17, 24, 25, and 26, under the premise that the instant land is a general aggregate taxation subject to general aggregate taxation, it is difficult to view that the Defendants did not have any justifiable reason to view that the Defendants did not have any justifiable reason for the imposition of the instant tax to the extent that they did not constitute a “justifiable reason for the imposition of the instant tax” under the above acknowledged facts and the purport of the entire pleadings, and it is difficult to view that the collection and disposition of the instant tax are legitimate by presenting the judgment that the Defendants did not have any justifiable reason for the Plaintiff’s imposition of the duty of tax authority.

Therefore, the Plaintiff’s claim based on the premise that the tax return, the tax payment notice, the payment demand, and the disposition are illegal against the Plaintiff is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.