Incheon District Court 2013 Gohap31959 (Law No. 17, 2013)

The disposition of the disposition authority shall not be deemed null and void only because the defect in the disposition is objectively obvious.

If it is merely a mistake of the fact that the disposition imposing gift tax is a requirement fact, or it can only be found that the fact should be accurately examined, it cannot be said that the defect is objectively apparent.

national discipline;

2013Na202170 Unlawful gains

United StatesA

Korea

Incheon District Court Decision 2013Gahap31959 Decided September 17, 2013

March 13, 2014

April 10, 2014

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

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

1. Purport of claim

Main and Preliminary, the defendant shall pay to the plaintiff the amount of OOO as well as 5% per annum from June 23, 2009 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment (the plaintiff added the claim for damages on the ground that the conjunctive claim was made by the public official belonging to the defendant for unlawful taxation due to the intention or negligence of the public official).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff the money stated in the above claim.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is that the parties’ assertion No. 3 of the judgment of the court of first instance are asserted by the parties, and that the judgment No. 4 of the judgment of the court of first instance is modified as to the primary claim, and that of the judgment of the court of first instance as to the conjunctive claim added by the plaintiff at the court of first instance is identical to that of the judgment of the court of first instance, except for the addition of the judgment of the court of first instance as to the conjunctive claim added by the plaintiff at the court of first instance as stated in the

2. Judgment on the conjunctive claim

A. The plaintiff's assertion

A public official belonging to the defendant imposed gift tax on the plaintiff subject to exemption of gift tax by erroneously interpreting the relevant Acts and subordinate statutes, such as the Addenda of the former Restriction of Special Taxation Act, and making a mistake in factual relations. The defendant is responsible for compensating for the amount equivalent to the gift tax and additional dues paid by the plaintiff as property damage caused by unlawful administrative disposition

B. Determination

Even if a certain administrative disposition is unlawful, it cannot be determined immediately by itself that the administrative disposition constitutes a tort caused by a public official’s intentional or negligent act, and the existence of a public official’s intentional or negligent act requires a separate judgment as to the existence of a public official’s intentional or negligent act. The reason is that, even if an administrative agency conducted a certain theory before the establishment of the interpretation of the relevant statutes and conducted its work in an unlawful manner, and it was difficult to expect an average public official to faithfully implement the same treatment method at the time of the disposition, it cannot be deemed as a result of a public official’s negligent act, barring special circumstances (see, e.g., Supreme Court Decisions 2002Da31018, Jun. 11, 2004; 2009Da97925, Apr. 29, 2010).

As to the instant case, the Plaintiff’s imposition of gift tax was erroneous in interpreting the relevant Acts and subordinate statutes as to the point of time of determining whether the donee had been exempted from gift tax, which is the requirement for exemption from gift tax, and its defect is serious. However, such circumstance alone cannot be readily concluded that the instant imposition of gift tax constitutes a tort due to a public official’s intentional act or negligence. Rather, according to the foregoing circumstances, the Plaintiff’s imposition of gift tax cannot be deemed to have been conducted on January 1, 199, which is the time of the enforcement of the former Restriction of Special Taxation Act, based on the determination of whether the requirements for exemption from gift tax (hereinafter “requirements for exemption from gift tax”) were met, rather than on January 1, 199, which is the time of the enforcement of the former Restriction of Special Taxation Act, and thus, it cannot be deemed that there was no other error in the lower court’s determination that the Plaintiff’s imposition of gift tax was conducted at the time of the imposition of gift tax of this case.

3. Conclusion

Therefore, the plaintiff's main claim and the conjunctive claim are all dismissed, and the judgment of the court of first instance on the main claim is just in conclusion, and the appeal is dismissed, and the supplementary claim of the plaintiff in the trial is also dismissed, and it is so decided as per Disposition.