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Case Number of the immediately preceding lawsuit
Supreme Court-2014-Du-13393 (Law No. 15, 2017)
Title
In the case of a housing sale trust, the refund of the sale price to the buyers based on the housing sale guarantee contract of the sale guarantee company is not the supply of goods.
Summary
In the case of a housing sale guarantee, the fact that a housing sale guarantee company has refunded a sale price based on a housing sale guarantee contract cannot be viewed as a supply of goods, and the existence of a supply of goods when disposing of trust property in the position of a trustee.
Cases
2017Nu338 Revocation of Disposition of Imposition of Value-Added Tax
Plaintiff
OOOO
Defendant
O Head of tax office
Conclusion of Pleadings
December 20, 2017
Imposition of Judgment
on 17, 2018
Text
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit are borne by the Defendant.
Purport of claim and appeal
1. Purport of claim
The imposition of the value-added tax of KRW 00 (including the additional tax) imposed on the Plaintiff on November 10, 2011 shall be revoked.
2. Purport of appeal
A. The plaintiff
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
Reasons
1. Details of the disposition;
This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 9 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Determination on the defense prior to the merits
If an administrative disposition is revoked, such disposition does not become null and void, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2009Du16879, Apr. 29, 2010). According to the evidence No. 5, the Defendant may recognize the fact that the instant disposition was revoked ex officio on September 26, 2017. Accordingly, the instant lawsuit seeking revocation of a disposition that has not already been extinguished, and thus, became null and void as there is no benefit of lawsuit. The Defendant’s prior defense on the merits that point out is with merit.
3. Conclusion
Thus, the lawsuit of this case shall be dismissed in an unlawful manner. Since the judgment of the court of first instance different from this conclusion is improper, it shall be revoked and dismissed, and the total costs of the lawsuit shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation