Supreme Court-2017-Du61089 ( October 15, 2018)

If a disposition is revoked, whether a lawsuit is available or not

Since the defendant can recognize the fact that the plaintiff revoked ex officio a disposition to revoke the purport of the claim, the lawsuit of this case is seeking the revocation of an administrative disposition that does not exist and is unlawful as there is no benefit of lawsuit

2018Nu40197 Revocation of Disposition of Imposition of Gift Tax

MaO

OO Head of the tax office

Judgment prior to remand

Seoul High Court Decision 2017Nu36160 Decided December 12, 2017

Supreme Court Decision 2017Du61089 Decided October 15, 2018

October 25, 2018

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of the gift tax of KRW 85,341,850 (including the penalty tax) to the plaintiff on January 4, 2016.

1. Details of the disposition;

The reasons for this part are the same as the corresponding part of the reasons for the judgment of the court of first instance (Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the meaning of the language used in this part is the same as the judgment of the court of first instance).

2. Whether the lawsuit of this case is lawful

When an administrative disposition is revoked, such disposition shall lose its validity, and no longer exists, 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 2017Du38621, Jun. 29, 2017).

In full view of the purport of the entire pleadings in the statement of evidence Nos. 12 and 13 ex officio, the Defendant may recognize the fact that the instant disposition was revoked ex officio around May 31, 2018, when the instant lawsuit was pending in this court in accordance with the purport of the judgment of remanding. As such, the instant lawsuit seeking revocation of a disposition that had not already been extinguished and became unlawful as there was no interest in the lawsuit.

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed, and since the judgment of the court of first instance differs from this conclusion, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act, and