The case holding that since the ownership transfer registration for a part of the above shares is null and void after the completion of the right to a site registration for a part of the above shares, and since the tax assessment conducted as a gift subject to taxation is null and void as it is obvious that the defect is serious, the tax collected thereby shall be returned as unjust enrichment

The case holding that since the ownership transfer registration for a part of the above shares is null and void after the completion of the right to a site registration for a part of the above shares, and since the tax assessment conducted as a gift subject to taxation is null and void as it is obvious that the defect is serious, the tax collected thereby shall be returned as unjust enrichment.

Articles 4 and 19 of the Administrative Litigation Act, Article 20 of the Act on the Ownership and Management of Aggregate Buildings

Plaintiff 1 and four others (Attorney Park Byung-chul, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2005Na37422 Delivered on December 8, 2005

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively and objectively in violation of important laws and regulations, and in determining whether the defect is significant and obvious, it is necessary to examine the purpose, meaning, function, etc. of the laws and regulations which form the basis for the pertinent taxation in a teleological context and to reasonably consider the specificity of the specific case itself (see, e.g., Supreme Court Decisions 2000Da24986, Jul. 10, 2001; 2006Du330, Mar. 16, 2006).

2. After compiling the adopted evidence, the lower court rejected all the Plaintiffs’ assertion seeking the return of unjust enrichment on the premise that the instant disposition is null and void as a matter of course, on the ground that: (a) the imposition of the instant gift tax, etc. by the head of Seongbuk-do Tax Office (hereinafter “instant disposition”) on the legal relations or factual relations that are not subject to taxation is a case where there are objective circumstances to mislead the misunderstanding that they are subject to taxation; and (b) it cannot be seen that the defect is apparent as being subject to taxation; and (c) the defect cannot be seen as apparent.

3. However, in full view of the following circumstances revealed by the reasoning of the record and the judgment of the court below, the registration of partial transfer of ownership of this case was made with respect to part of the share in the above site after the completion of the registration of site ownership on 701.2/1,547 of the site of this case, and it is evident that there is no gift subject to taxation of this case even through the copy of the register itself, and accordingly, the registration of partial transfer of ownership of this case constitutes the subject matter subject to ex officio cancellation under the Registration of Real Estate Act, as well as the payment by the disposition of this case also constitutes the subject matter subject to ex officio cancellation under the Registration of Real Estate Act, and there is no room for dispute over the interpretation of the legal principles as to the unity of the exclusive ownership and the right to use site, which are related to the establishment of the gift subject to taxation of this case, since the defect existing in the disposition of this case is significant and objective

Nevertheless, the court below determined otherwise that the disposition of this case is not a void as a matter of course, and such judgment of the court below is erroneous in the misapprehension of legal principles as to the invalidation of a taxation disposition, and such illegality has influenced the judgment. The ground of appeal pointing this out is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)