Whether a judgment subject to a retrial due to omission of judgment under Article 8 (2) of the Administrative Litigation Act constitutes a judgment subject to retrial

The rejection of a lawsuit for retrial is difficult to deem that any special private exists on the failure to file a petition for retrial, as alleged as grounds for retrial.

A request for distribution, etc. under Article 68-2 of the National Tax Collection Act

Seoul High Court 2018Reu 10188 Revocation of allocation

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○ Asset Management Corporation

November 30, 2018

oly 18, 201

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff, including the part resulting from participation in the appeal.

Purport, purport of appeal and request for retrial

Each judgment subject to a retrial and each judgment of the first instance shall be revoked. On April 15, 2015, the defendant (hereinafter referred to as the "defendant") revoked KRW 189,230 among the dispositions taken to distribute 1/3 shares of forest land in ○○○○○-dong, Busan 56-7 on April 15, 2015, KRW 90,276,051 to the plaintiff (hereinafter referred to as the "Plaintiff") among the dispositions taken to distribute 1/3 shares in the public auction proceedings, and the intervenor joining the defendant (hereinafter referred to as the "participating") revoked and allocate KRW 90,276,051 to the plaintiff (hereinafter referred to as "Plaintiff").

1. Determination of the original judgment

The following facts are clear in records:

A. The Plaintiff filed a lawsuit against the Defendant seeking revocation of the entries in the purport of the claim and allocation of KRW 90,276,051, among the distribution dispositions made by the Defendant in the process of public auction as stated in the purport of the claim in the Seoul Administrative Court’s 2016Guhap5082. The Plaintiff dismissed the lawsuit on April 13, 2017, on the ground that the lawsuit seeking distribution of the proceeds of public auction was not permitted as seeking a formation judgment that directly conducts an administrative disposition, and the part seeking revocation of the distribution disposition was dismissed on the ground that the Plaintiff’s allegation is not illegal.

B. The Plaintiff filed an appeal against the judgment of the first instance court as Seoul High Court No. 2017Nu47214, but the appeal was dismissed on December 8, 2017 (hereinafter referred to as “decision subject to a retrial”) and the Plaintiff appealed as Supreme Court Decision 2018Du3075, but the appeal was dismissed on April 12, 2018, and the judgment subject to a retrial became final and conclusive.

C. Since then, the Plaintiff filed a lawsuit for a retrial on the judgment subject to a retrial with Seoul High Court Decision 2018Nu174, and asserted as follows, but on August 28, 2018, the Plaintiff rendered a judgment dismissing the Plaintiff’s claim on the grounds that all the grounds for a retrial asserted by the Plaintiff are groundless, and became final and conclusive around that time (hereinafter “ judgment subject to a retrial 2”).

① The rejection of the Plaintiff’s assertion that the judgment subject to a retrial had not been served on the notice of tax payment constitutes grounds for a retrial under Article 451(1)9 of the Civil Procedure Act, and the grounds for a retrial under Article 451(1)8 of the same Act, which had omitted judgment on important matters that could affect the judgment, and the administrative disposition, etc., which served as the basis of the judgment, was changed by other administrative dispositions, etc.

2. Determination as to the existence of a ground for retrial

A. The plaintiff's assertion

1) The judgment subject to a retrial cites the precedent regarding the burden of proof of service, and the Plaintiff

A. The Plaintiff did not make a decision on the Plaintiff’s assertion and submitted evidence, such as the evidence of the Supreme Court Decision 99Da1260, which is an important matter that could affect the judgment, and the Plaintiff’s assertion as to this, as the method of attack and defense submitted in a lawsuit. This constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act.

2) The Supreme Court’s decision subject to a retrial (2007Da69834, 69841) erroneously applied the Supreme Court’s decision on “Omission of Judgment.” The foregoing Supreme Court’s decision is unlawful as it violates the provisions of Articles 208(1) and (2) and 451(1)9 of the Civil Procedure Act, and is null and void as it is contrary to the statutory requirements and method. As long as the said judgment may affect the fact-finding of a final and conclusive judgment, it constitutes grounds for retrial under Article 451(1)8 of the Civil Procedure Act.

3) Regarding the part that "no amount in arrears exists", the defendant made a confession that there is no amount in arrears by stating that there was no tax payment notice for the amount in arrears at the time of the first judgment subject to a review. The second review judgment omitted the plaintiff's assertion on this issue and its related evidence (the reply of the director of the tax office having jurisdiction over the issue). This constitutes grounds for retrial under Article 451 (1) 9 of the Civil Procedure Act.

4) Although the Plaintiff submitted a written request for a public sale by proxy and a written request for delivery to the Intervenor in connection with the public sale of the land at issue in this case, and asserted that the above documents violate the form and thus are invalid, the judgment subject to a retrial is omitted. There is a ground for retrial under Article 451(1)9 of the Civil Procedure Act.

5) At the time of 194, the Plaintiff submitted the attachment report as evidence to prove that the additional charge on national tax (principal tax) was equivalent to 3% of the internal tax, and asserted that the Intervenor’s amount of delinquent tax claimed is unlawful, the judgment subject to the judgment subject to the judgment subject to the judgment subject to the judgment pursuant to Article 2 was omitted due to failure to specify the judgment on the facts specified in the attachment report during the judgment grounds. This constitutes grounds for retrial under Article 451(

6) The intervenor's amount in arrears requested to be delivered is an unauthorized claim for twice the amount in arrears at will by arbitrarily expanding the statutory due date without any grounds for taxation. Thus, the judgment subject to a retrial 2 omitted the plaintiff's argument and evidence related to such defect in the request for delivery. There are grounds for retrial under Article 451 (1) 9 of the Civil Procedure Act.

7) The judgment subject to a retrial was erroneous by omitting a judgment on the Defendant’s reply to the claim for information disclosure related to public auction. The judgment subject to a retrial was based on the part alleged as a ground for a retrial. This constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act.

8) The judgment subject to a retrial 1 omitted a judgment on the Plaintiff’s assertion that “the request for a public auction by an intervenor is null and void among the grounds for a retrial.” Moreover, given that a disposition based on the “written request for a public auction by proxy” as of May 2, 2014, which served as the basis of the judgment, was null and void due to the cancellation of the public auction execution procedure as of November 21, 2014, this constitutes a case where a final and retroactive change by another administrative disposition after the request for a public auction by proxy was made, the judgment subject to a retrial 2 was omitted. Therefore, the judgment subject to a retrial 1 and 2 constitutes grounds for a retrial under Article 451(1)8 and 9 of

9) The judgment subject to a retrial 1 omitted a judgment on the argument that “the date of receipt of the request for issuance of local tax by the former and US market was clearly indicated as March 31, 2015 and thus null and void.” The judgment subject to a retrial 2 omitted a judgment on the ground of the Plaintiff’s assertion that the grounds for a retrial have been asserted. All of these are grounds for a retrial under Article 451(1)9 of the Civil Procedure Act.

10) On the Plaintiff’s assertion that “the Intervenor’s amount of claims for delivery violated forms and the amount of delinquent taxes extinguished as a result of revocation of imposition,” the judgment subject to a retrial was omitted, and the judgment subject to a retrial was also not determined to have asserted the grounds for a retrial based on the judgment subject to a retrial. This constitutes grounds for retrial under Article 451(1)9

11) Among the grounds for retrial asserted by the Plaintiff, the part that “it is legitimate to seek modification of the allocation disposition” is an important matter that may affect the judgment, but the judgment subject to a retrial by the second instance is unlawful by omitting judgment, which is not specified in the grounds for the judgment on the above assertion and the Supreme Court’s decision on the contents of the case. This constitutes grounds for retrial under Article 451(1)9 of the

B. Determination

1) The Defendant asserts to the effect that even though the Plaintiff filed a lawsuit on the judgment subject to a retrial for the first instance and received the judgment subject to a retrial for the same reason, the Defendant’s filing a lawsuit again for the same reason constitutes abuse of power. However, it cannot be deemed that the grounds for a retrial alleged by the Plaintiff in the instant lawsuit are the same as the grounds for a retrial for the second instance, and no evidence exists to deem that the instant lawsuit constitutes abuse of power. This part of the Defendant’s assertion

2) Determination as to the argument regarding the judgment subject to a retrial

Article 456(1) of the Civil Procedure Act provides, “The lawsuit for a retrial shall be instituted within 30 days from the date when the party concerned becomes final and conclusive, and the grounds for a retrial regarding the judgment subject to a retrial are known.” The Plaintiff appears to have served the first judgment subject to a retrial and could have known the grounds for a retrial. Since the instant lawsuit was received on September 28, 2018, which was 30 days after the date when the Plaintiff became aware of the grounds for a retrial, the part concerning the judgment subject to a retrial among the instant lawsuit relating to the judgment subject to a retrial is unlawful due to its lapse of

3) Determination as to the argument regarding the judgment subject to a retrial

"Grounds for retrial under Article 451 (1) 8 of the Civil Procedure Act" means cases where a judgment or administrative disposition, which legally binding force or has become materials for fact-finding in a final judgment, becomes final and conclusive and retroactive by another judgment or administrative disposition thereafter, and where such judgment or administrative disposition was adopted as evidence for fact-finding and it might affect the fact-finding of the final and conclusive judgment (see, e.g., Supreme Court Decision 2000Da12679, Dec. 14, 2001). "when the decision was omitted on important matters that may affect the final and conclusive judgment" under Article 451 (1) 9 of the Civil Procedure Act, the plaintiff's request for a public auction cannot be asserted that the plaintiff's request for a second time is invalid because the plaintiff's request for a public auction cannot be asserted that there were no grounds for rejection of the plaintiff's request for a final and conclusive judgment, as alleged in the grounds for final and conclusive judgment."

In addition, the part that the Plaintiff asserts that there are grounds for a retrial under Article 451(1)8 or 9 of the Civil Procedure Act as to the judgment subject to a retrial under Article 451(1)8 or 9 of the Civil Procedure Act does not constitute grounds for a retrial under the above provision.

3. Conclusion

Thus, the plaintiff's lawsuit of retrial of this case is unlawful and dismissed.