If the defect in the administrative act is merely a cause for revocation, the return of unjust enrichment shall not be claimed directly.

If the defect in the administrative act is merely a ground for revocation, the validity of the disposition shall be denied unless the disposition is revoked, and the benefit accrued therefrom shall not be deemed to be a benefit without any legal ground, and thus, the defendant shall not be entitled to seek a return

2011Trush 137058 Undue gains

Lee Dong-A et al.

Korea

January 18, 2012

February 1, 2012

1. All of the plaintiffs' claims are dismissed.

2. The plaintiffs shall bear the costs of lawsuit.

The defendant shall pay 9,414,560 won to the plaintiff KimB and 5,648,730 won to the plaintiff KimB and 20% interest per annum from August 14, 2008 to the service date of a copy of the complaint of this case.

The plaintiffs asserted to the effect that the defendant should collect taxes in arrears through the public sale of property after designating the plaintiffs as the second taxpayer due to delinquency in corporate tax, etc., and that such taxes should be returned to unjust enrichment because of the lack of the grounds for taxation. On the other hand, even if the administrative disposition was unlawful, the effects of the administrative act can not be denied without permission on the ground of the defect, except in the case where there is a reason that the defect should be deemed null and void as a serious and obvious reason. The fairness of the administrative act is not the same as res judicata effect of the judgment, but if the defect in the administrative act within the objective scope of the fairness is merely a reason for revocation of the disposition, it cannot be viewed as a benefit without any legal ground (see, e.g., Supreme Court Decision 94Da28000, Nov. 11, 1994). The evidence submitted by the plaintiffs alone is insufficient to deem the defendant's tax portion and disposition against the plaintiffs as null and void, and there is no other evidence to acknowledge it. Therefore, the plaintiffs' claim for return of unjust enrichment cannot be justified.