(As in the judgment of the first instance court), the extinctive prescription of the claim for restitution of unjust enrichment expires.

After five years from the date of actual payment of capital gains tax, the extinctive prescription of the right to request the return of such unlawful gains is completed.

Seoul Northern District Court 2017Na30710 (Main District Court) Return of Unjust Enrichment

Seoul Northern District Court 2017Na36220 (Consolidated) Return of Unjust Enrichment

Plaintiff and Appellant

○○ Kim et al.

Defendant, Appellant

Korea

Seoul Northern District Court Decision 2016Da24298 (Main Office) Decided December 16, 2016

Seoul Northern District Court Decision 2016Da36628 (Consolidated) Decided June 20, 2017

November 3, 2017

January 12, 2018

1. The plaintiffs' appeals against the defendant are all dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

A. Basic Case: (a) The Defendant pays to the Plaintiff △△ KRW 100 million, the amount calculated by the ratio of 5% per annum from the date of delivery of a copy of the complaint for each basic case from X and the relevant following day to the date of complete payment, and 15% per annum from the date of complete payment.

B. A consolidation case: the Defendant shall pay the Plaintiff YY 2X, a trade-level, a trade-level, a trade-level, and a trade-level, with the amount of 5% per annum from the date of delivery of a copy of the complaint for the consolidation case from the 201X to the date of full payment, and 15% per annum from the following day to the date of full payment.

2. Purport of appeal

(a) Basic case: Revocation of the part of the judgment of the first instance court of the case No. 2017Na30710 prior to consolidation against Defendant Kim ○, among the judgments of the first instance court of the case. The same shall apply to the claims No. 1-A

(b) A consolidation case: A judgment of the first instance court in the case of 2017Na36220 prior to the consolidation shall be revoked. The same shall apply as described in paragraph (b) of the purport of the claim.

1. Scope of the judgment of this court;

병합전 2017나30710 사건의 제1심에서 피고에 대하여, 원고 김○○은 시흥시 ◎◎동 2XXX-XX 대 4XX.1㎡(이하 '이 사건 ◎◎동 토지'라 한다)의 양도에 관하여 김◇◇ 명의로 납부한 양도소득세 2,XXX,XXX원의 반환을, 원고 윤□□은 이 사건 ◎◎동 토지의 양도에 관하여 피고가 위 원고에게 한 양도소득세 부과처분이 당연무효임을 전제로 하여 피고가 위 무효인 부과처분에 기초하여 위 원고 소유의 남양주시 ☆☆읍 ☆☆리 1XXXXX㎡(이하 '이 사건 ☆☆리 토지'라 한다)에 관하여 공매절차를 진행하여 지급받은 매각대금 중 1억 X,XXX만 원의 반환을 각 구하였고, 위 제1심은 원고들의 청구를 모두 기각하였다.

The plaintiffs appealed against this, and the above first instance court ordered the rejection of the petition of appeal on X. X. 201 X, on the ground that the appeal period for the plaintiff's appeal against the plaintiff's appeal against the plaintiff's wife was over, and the appeal against the plaintiff's appeal was filed. The plaintiff's appeal was filed by the Seoul Northern District Court 2017Ra1016, but the above court decided to dismiss the plaintiff's appeal against X. X. 201 X. X. 201 X. As the above decision became final and conclusive, the part concerning the plaintiff's appeal against the plaintiff's wife among the above first instance court became final and conclusive.

Therefore, the scope of this court's adjudication is limited to the part concerning the claims of plaintiffs Kim ○, among basic cases and the part concerning the consolidation claims of plaintiffs Masan.

2. Determination as to the plaintiff Kim○-○'s claim in the basic case

The reason why this part is used by the court is the same as the part against the above plaintiff among the reasons 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 starting point of calculating the extinctive prescription of the right to claim restitution of unjust enrichment in the court of first instance shall be calculated from the time when the above plaintiff received a final and conclusive judgment by responding to civil and criminal cases related to the land in this case, or since the above response act constitutes a judicial claim which is a cause interrupting the extinctive prescription, the extinctive prescription period for the above plaintiff's right to claim restitution of unjust enrichment has not expired since the above response act constitutes a cause interrupting the extinctive prescription period, the extinctive prescription period for the above plaintiff's right to claim restitution of unjust enrichment in this case has not been completed. However, as long as the payer of the capital gains tax on the land in this case

3. Determination as to the plaintiff 1 of the consolidated case's claim

A. Determination on the main defense of this case

As the instant lawsuit is identical to the instant lawsuit filed by the said Plaintiff with the said Plaintiff Kim○○, the instant lawsuit constitutes a duplicate lawsuit, and thus, deemed unlawful. Article 259 of the Civil Procedure Act provides that “A party shall not institute any lawsuit against the case pending in the court.” However, among the lawsuit filed against the Defendant, the facts that the said Plaintiff’s claim part among the lawsuit filed against the Defendant became final and conclusive in accordance with the order to dismiss the petition of appeal are as seen earlier, the pending lawsuit corresponding to the previous lawsuit was extinguished at the time of the conclusion of pleadings at the trial of the instant lawsuit. As such, the instant lawsuit cannot be deemed to constitute a duplicate lawsuit.

Therefore, the defendant's main defense is without merit.

B. Judgment on Plaintiff 1’s assertion

In the basic case, the above plaintiff claimed the return of unjust enrichment on the ground of revocation of the disposition imposing the transfer income tax of this case, and the return of unjust enrichment on the ground of the invalidation of the disposition imposing the transfer income tax of this case in the combination case, and thus, the subject matter of each lawsuit is different.

However, the claim for restitution of unjust enrichment that does not have any legal ground is merely an attack method for the failure, cancellation, invalidation, rescission, etc. of a contract (see, e.g., Supreme Court Decision 2006Da81141, Jul. 13, 2007). As such, the subject matter of a lawsuit involving consolidation is the same as the subject matter of a lawsuit established earlier, and the parties are the same as the subject matter of a lawsuit, the res judicata effect of the judgment against the said plaintiff in a basic

Therefore, the above plaintiff's claim for a consolidation case cannot be judged differently from the basic case because it goes against the res judicata of the judgment of the basic case. Thus, the above plaintiff's claim is without merit.

4. Conclusion

Therefore, the first instance court decisions are justified, and all appeals by the plaintiffs are dismissed. It is so decided as per Disposition.