District Court-2014-Na-51313 (2015.09.10)

The revocation of a disposition of imposition constitutes a ground for retrial under Article 451(1)8 of the Civil Procedure Act.

There are grounds for retrial of "when a civil or criminal judgment or any other judgment or administrative disposition, which forms the basis of the judgment, has been changed by a different judgment or administrative disposition, as the disposition of this case was revoked, and there is no preserved claim of the plaintiff," under Article 451(1)8 of the Civil Procedure Act.

Article 24 of the National Tax Collection Act

2018Receives 50033

Korea

KoreaA

Suwon District Court, 2013Kadan503727 ( October 27, 2014)

District Court 2014Na51313, 2015.10

oly 16, 2019

.06.20

1. The decision subject to review shall be revoked.

2. Revocation of the judgment of the first instance, and the plaintiff's claim is dismissed.

3. The plaintiff (defendant) shall bear all the costs of the lawsuit before and after the retrial.

request, purport of appeal and request for retrial

1. Purport of claim

The contract for the division of property between the Defendant (hereinafter referred to as “Defendant”) and the B on March 5, 2012, which was concluded between the Defendant (hereinafter referred to as “Defendant”) and the B on the real estate indicated in the separate sheet, shall be revoked, and the Defendant shall implement the procedure for the cancellation of the transfer of ownership registration, which was completed on March 19, 2012 by the Ji Government District Court, Yangyang Branch Court, Yangyang Branch, and Yangyang Registry, with respect to the real estate

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the claim of the plaintiff (hereinafter referred to as "the plaintiff") corresponding to the revoked part shall be dismissed.

3. Purport of request for retrial;

The original decision is revoked. This is the defendant's purport of appeal.

1. Determination of the original judgment

The following facts are significant or obvious to this court in terms of records:

A. On December 8, 2009, 2000, the father Lee Dong-dong transferred ○○ apartment located in ○○○○○○○○dong on December 8, 2009, and on May 31, 2010, the ○○○ Tax Office filed a non-taxation report on one house for one household with the head of ○○○ Tax Office on May 31, 2010. On April 2, 2010, the ○○○ Tax Office (hereinafter referred to as the “instant disposition”). On August 1, 2011, on the ground that the transfer of ○ apartment does not meet the non-taxation requirement, the said ○○ apartment was designated as the payment deadline on August 31, 201, and notified the ○○, DoD, and EE that it would jointly pay KRW 278,398,150 on the said ○ apartment (hereinafter referred to as the “instant disposition”). At that time, the notice reached the B notice.

B. AB shared consultations with the Defendant on March 5, 2012, and completed the registration of transfer of ownership based on the property division on March 5, 2012 on the real estate listed in the attached list (hereinafter “instant ○○ apartment”) to the Defendant.

C. The Plaintiff filed a lawsuit against the Defendant seeking revocation of the registration of transfer of ownership on the instant ○○ apartment as a preserved claim with respect to the taxation claim based on the instant disposition for division of property and the revocation of the above division contract and restitution to its original state. The first instance court determined some of them as a fraudulent act, and revoked the division of property on March 5, 2012, which was concluded with respect to 1/2 of the instant ○○○○ apartment, and sentenced the Defendant to implement the procedure for registration of cancellation of transfer of ownership as to 1/2 of the instant ○○○ apartment as to the instant ○○○ apartment as the instant disposition for division of property. Accordingly, the Defendant filed an appeal against the instant ○○○ apartment as the District Court 2014Na51313, but the appellate court dismissed the Defendant’s appeal on September 10, 2015, which became final and conclusive by the Defendant’s dismissal of the judgment subject to a retrial as the final and conclusive judgment by the Supreme Court.

2. Determination as to the existence of a ground for retrial

"When a civil or criminal judgment, or any other judgment or administrative disposition, which forms the basis for a cause for a retrial under Article 451 (1) 8 of the Civil Procedure Act, has been altered by a different judgment or administrative disposition," means a case where the judgment or administrative disposition, which provides data for fact-finding in the final judgment, has become final and conclusive and retroactive by another judgment or administrative disposition (see, e.g., Supreme Court Decision 2000Da12679, Dec. 14, 2001)." In full view of the facts stated in subparagraphs 2 and 3-1, the Plaintiff filed a lawsuit against the ○○○○○○○ Tax Office for revocation of the imposition of transfer income tax by reason of the 2017Guhap652, which became final and conclusive by the 200○○○○ Tax Office's revocation of the imposition of transfer income tax by reason of the 201-B's refusal of the 201-B's possession of the deceased's shares in the name of the 2-BD and the above.

In other words, the original judgment recognized the Plaintiff’s taxation claim based on the instant disposition against B as a preserved claim. However, according to the above facts, the instant disposition was changed to be revoked by the administrative disposition, which was the cancellation of the duty to pay taxes by the head of ○○○ Tax Office. Thus, it is evident that there exists a ground for retrial of “when a civil or criminal judgment or other judgment or administrative disposition, which served as the basis of the judgment, has been changed by a different judgment or administrative disposition” under Article 451(1)8 of the Civil Procedure Act.

3. Judgment on the merits

The Plaintiff seeks the revocation of a property division contract and the cancellation procedure for cancellation of ownership transfer registration with respect to the instant ○○ apartment as a preserved claim by making the tax claim following the instant disposition as a preserved claim. However, as seen earlier, the Plaintiff’s assertion on a different premise is without merit, given that the instant disposition was revoked, and the Plaintiff’s claim on a different premise is without merit.

Therefore, the plaintiff's claim is without merit.

4. Conclusion

Therefore, the judgment subject to a retrial has grounds for retrial under Article 451 (1) 8 of the Civil Procedure Act, and thus, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair as it is so unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.