Supreme Court-2014-Du-47082 (2015.04.09)

Since there is no connection with whether land was cut for 8 years or not, it cannot be viewed that there is a ground for a retrial under Article 451(1)8 of the Civil Procedure Act.

Even if it is deemed that the argument about the administration in the related case is admitted as it is, it is not related to whether it has been self-confisened for eight years or not, and there is no ground for retrial under Article 451 (1) 8 of the Civil Procedure Act.

Article 451(1)8 of the Civil Procedure Act

2017Nu105 Revocation of Disposition of Imposing capital gains tax, etc.

IsaA

BB Director of the Tax Office

on 28, 2017

October 19, 2017

1. The request for retrial of this case is dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

1. Purport of claim and request for retrial

The decision subject to a retrial is revoked. The imposition of capital gains tax of KRW 51,359,950 (including additional tax) accrued in 2009 shall be revoked by the Defendant (hereinafter referred to as “Defendant”) on May 1, 2012 against the Plaintiff (hereinafter referred to as “Plaintiff”).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination of the original judgment

A. As of October 22, 1969, the Plaintiff reported the transfer income tax by applying the reduction or exemption of the transfer income tax to OOOx-x forest, 5,505 square meters, rixx-x forest, 157 square meters (at the time, two parcels were the forest before the division, but the above two parcels were divided; hereinafter the same was added to the land at the time) of O on June 29, 2009, after completing the registration of preservation of ownership, the Plaintiff transferred the instant land to 290,531,280 won at OO on May 26, 2010, while the Plaintiff filed a return on the transfer income tax by applying the reduction or exemption of the transfer income tax to self-farmland around eight years on the transfer of the instant land at issue on May 26, 2010, the Defendant rejected an application for reduction or exemption of the transfer income tax to the Plaintiff on May 1, 2012, but the Defendant made a disposition including the transfer income tax reverted to the Plaintiff (hereinafter referred to 95.).

(C) On September 2, 2013, the Plaintiff filed a lawsuit claiming the cancellation of the instant disposition under the O court 20xxxxxx, and was sentenced to a favorable judgment on April 16, 2014. Accordingly, on December 3, 2014, the Defendant filed an appeal and rendered a judgment dismissing the Plaintiff’s claim (hereinafter referred to as “the judgment on review”) that revoked the first instance judgment under the O court 20xxxxxxxxxxxxxxxxxxx, and on April 9, 2015, the Plaintiff filed a final appeal, but the judgment subject to review became final and conclusive by dismissing the final appeal on April 9, 2015,” the fact that there was no dispute with the lower judgment, the entries in the evidence No. 2, 3, 4, and 1, and the purport of the entire pleadings.

2. Determination on the petition for retrial of this case

A. The plaintiff's assertion

O court Decision 20xxxx judgment (hereinafter referred to as "related case judgment") rendered on June 2, 2017 recognized facts different from those that served as the basis for the judgment subject to a retrial. As such, the judgment subject to a retrial has grounds under Article 451(1)8 of the Civil Procedure Act (hereinafter referred to as "section 1").

In addition, the judgment subject to a review does not recognize the plaintiff's own knowledge for 8 years recognized by the National Tax Examination Committee, and it was unlawful by rejecting the above sales contract from evidence on the ground that there was a document for reduction and exemption of transfer tax was attached to the sales contract of this case between the O and the plaintiff, which serves as the basis for the imposition of transfer income tax (hereinafter "Chapter 2").

B. Determination

1) Relevant statutes

Article 8(2) of the Administrative Litigation Act provides that "the provisions of the Court Organization Act and the Civil Procedure Act and the Civil Execution Act shall apply mutatis mutandis to matters not specifically provided for in this Act with respect to administrative litigation, and Article 451(1) of the Civil Procedure Act provides that "if a party falls under any of the following subparagraphs, he/she may file a lawsuit for retrial on the final and conclusive judgment: Provided, That this shall not apply where the party has asserted the grounds by an appeal or has knowingly failed to assert them: Provided, That this shall not apply where the party concerned has asserted the grounds therefor by virtue of an appeal, or has knowingly failed to do so."

2) Determination as to the first proposal

In the judgment of the relevant case, the Plaintiff: “The Plaintiff, as the grounds for appeal, sold the forest land owned by the Plaintiff in this court and the government land of this case buried therein in accordance with the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor; at this time, the Plaintiff was unable to receive compensation for the above government land due to the Defendant’s fault. Since then, the Defendant recognized the omission of compensation by his own book, and caused it through civil petition; and the Defendant respondeded with the public notice that he would be paid the above government land in January 2016. In addition, the Defendant failed to set the consultation period in relation to the payment of the government land of this case so that the Plaintiff could not file an application for adjudication at source because it did not set the consultation period. Accordingly, the Defendant asserted that the Defendant shall pay KRW 2.1 million compensation regardless of the Plaintiff’s application for adjudication on the expropriation of the government land of this case.”

In light of the part that the Plaintiff had previously asserted in the first instance trial, the Plaintiff asserted that it recognized facts different from the contents that served as the basis for the decision subject to a review in the relevant case.

The part of the judgment in the relevant case as above is that the plaintiff's claim for compensation for government affairs alleged in the relevant case is unlawful because the plaintiff's claim for compensation for government affairs is not followed by the adjudication procedure, even if it is assumed that such facts are established, it cannot be deemed that the plaintiff's assertion concerning government affairs is admitted as it is.

Even if the Plaintiff’s assertion as to the administration is acknowledged in the related case’s ruling, it is not related to whether or not the Plaintiff has maintained the land of this case for eight years, and there is no ground for retrial under Article 451(1)8 of the Civil Procedure Act.

Therefore, the plaintiff's first proposal is without merit.

3) Determination as to the second proposal

The second chapter argues that the fact-finding and the selection of evidence of a trial case are inappropriate, which does not constitute grounds for retrial under the subparagraphs of Article 451(1) of the Civil Procedure Act.

Therefore, the second proposal by the plaintiff is without merit.

3. Conclusion

Therefore, the part concerning the first ground for retrial of this case among the plaintiff's request for retrial of this case is dismissed as it is without merit, and the second ground for appeal shall be dismissed as it is unlawful, but the order shall only indicate the purport that the request for retrial of