Busan High Court (Capwon) 2018-Nu-10616 ( August 22, 2018)

The res judicata effect of a final and conclusive judgment previously rendered does not constitute grounds for retrial when it is against the final and conclusive judgment previously rendered.

When the res judicata effect of a final and conclusive judgment previously rendered does not extend to a person subject to review, it does not constitute a ground for retrial under Article 451(1)10 of the Civil Procedure Act.

Article 451(1) of the Civil Procedure Act

(original)The imposition, disposition, or revision of gift tax of 2018Nu100

Plaintiff, Appellants

AA

O Head of tax office

Busan High Court Decision 2018Nu10616 decided August 22, 2018

March 20, 2019

April 17, 2019

1. Among the lawsuits for retrial of this case, the part concerning the grounds for retrial under Article 451 subparagraph 9 of the Civil Procedure Act shall be dismissed.

2. The plaintiff (Plaintiff)'s remaining petition for retrial is dismissed.

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

and review

The decision subject to a retrial is revoked. On August 11, 2016, the part of the disposition imposing gift tax of KRW 116,578,430 on the Plaintiff (hereinafter referred to as “Plaintiff”) exceeding KRW 7,221,00 among the disposition imposing gift tax of KRW 116,578,430 shall be revoked.

1. Basic facts

The following facts are apparent in the records or obvious to this court:

A. On December 10, 2014, the Plaintiff (hereinafter referred to as the “instant company”) newly granted 18,000 shares (hereinafter referred to as “shares”) by increasing capital on December 10, 2014 (hereinafter referred to as “instant capital increase”); and 4,000 shares by giving up subscription to 5,00 shares out of 9,00 shares of which shares could have been acquired by ChoD (the Plaintiff’s birth) who is a member of the instant company; and the Plaintiff acquired 14,00 shares by being allocated 5,00 shares of the said forfeited shares.

B. Around 2016, the director of the regional tax office conducted an investigation into changes in the number of contribution units with respect to the instant company. On the ground that the Plaintiff’s allocation of 5,000 shares per forfeited share with the instant capital increase constitutes a donation of profits arising from capital increase under Article 39(1)1(a) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 13557, Dec. 15, 2015; hereinafter “former Inheritance Tax and Gift Tax Act”), and the value of donated property was calculated as KRW 487,830,000.

C. On August 11, 2016, the Defendant notified the Commissioner of the Regional Tax Office of taxation data, who imposed gift tax of KRW 116,578,430 (= gift tax of KRW 86,566,00 (Gift) + KRW 30,012,430 (additional tax)) on the Plaintiff (hereinafter “instant disposition”).

D. On March 29, 2017, the Plaintiff dissatisfied with the instant disposition, filed a lawsuit against the Defendant on March 29, 2017, seeking a judgment, such as the purport of the claim, with the Director of the Regional Tax Office and the Commissioner of the National Tax Service.

E. On April 18, 2018, the Changwon District Court rendered a judgment to the effect that "the part exceeding KRW 7,221,000, out of the disposition of imposition of gift tax of KRW 116,578,430 imposed on the Plaintiff on August 11, 2016, exceeds KRW 7,221,00" (2017Guhap341).

F. On August 22, 2018, the appellate court, Busan High Court, which filed an appeal against the above judgment, accepted the appeal by the defendant on August 22, 2018, and revoked the judgment of the first instance. The judgment that "the plaintiff's claim is dismissed." (hereinafter referred to as "the judgment of retrial"). The plaintiff appealed against the judgment subject to retrial, but the Supreme Court dismissed the appeal on December 13, 2018 (2018du5586, 2018) and the judgment subject to retrial became final and conclusive as it is.

2. Determination on the grounds for retrial

A. Article 451(1)9 of the Civil Procedure Act

The Plaintiff asserts to the effect that “The instant capital increase or capital increase was made on December 10, 2014,” and that there is a ground for retrial under Article 451(1)9 of the Civil Procedure Act, on the grounds that there was no determination on the purport that “the instant capital increase or capital increase was made within three years before the business year including the base date for appraisal (in this case, from December 10, 201 to December 10, 2014)” under Article 56(3) proviso and (5) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act.

A lawsuit for retrial shall be filed within 30 days from the date the parties concerned become final and conclusive and the original copy of the judgment became aware of the grounds for retrial (see Article 456(1) of the Civil Procedure Act). Barring special circumstances, if the original copy of the judgment is served to an attorney, the parties concerned knew of the existence of the grounds for retrial by being aware of whether the judgment was omitted at the time when the original copy of the judgment was served, barring any special circumstances. Thus, if the judgment becomes final and conclusive thereafter, the period for filing a lawsuit for retrial on the grounds of the omission of judgment shall be calculated from the date when the judgment becomes final and conclusive (see, e.g., Supreme Court Decision 92Da33920, Sept. 28, 1993). Since the grounds for retrial under each subparagraph of Article 451(1) of the Civil Procedure Act constitute separate grounds for retrial, whether the period for filing a lawsuit for retrial ought to be separately examined depending on the grounds for retrial under each subparagraph, and even if the lawsuit for retrial was filed within the period for filing a lawsuit within the period for retrial.

In light of the aforementioned legal principles, the following facts are examined: (a) the judgment subject to retrial was served on the Defendant on August 24, 2018, and became final and conclusive on December 13, 2018; and (b) the instant lawsuit was filed on December 31, 2018; (c) however, it is apparent in the record that the grounds for retrial under Article 451(1)9 of the Civil Procedure Act were only presented in the Plaintiff’s preparatory brief as of March 15, 2019. Therefore, the Plaintiff’s ground for retrial was asserted after the lapse of the period for retrial (i.e., the period from December 13, 2018 to 30 days), and is unlawful without further review.

B. Article 451(1)10 of the Civil Procedure Act

The Plaintiff asserts to the effect that there are grounds for retrial under Article 451(1)10 of the Civil Procedure Act, since the final judgment was final and conclusive, contrary to Supreme Court Decision 2011Du31253 Decided November 14, 2013, Busan District Court Decision 2015Guhap21842 Decided September 25, 2015, Seoul High Court Decision 2014Nu53003 Decided November 11, 2014, etc., and thus, there are grounds for retrial under Article 451(1)10 of the Civil Procedure Act in the judgment subject to retrial. The meaning of "when a final and conclusive judgment prior to filing a new judgment is contrary to the final and conclusive judgment rendered prior to filing a new judgment" refers to cases where the effect of the final and conclusive judgment extends to the parties to the judgment subject to retrial, and even if the final and conclusive judgment prior to the final and conclusive judgment concerns a case similar thereto, the same does not constitute grounds for retrial under the above provision (see, e.g., Supreme Court Decision 20008Da393816, Aug. 26, 294.

The above Supreme Court Decision 2011Du31253 Decided November 14, 2013, etc., which was rendered by the Plaintiff due to the previous final and conclusive judgment, does not affect the res judicata effect of the above final and conclusive judgment in the judgment subject to a retrial, since the parties to the judgment subject to a retrial and the subject-matter

3. Conclusion

Therefore, since the part concerning the grounds for retrial under Article 451 (1) 9 of the Civil Procedure Act among the defendant's lawsuit for retrial of this case is unlawful, it shall be dismissed, and the remaining grounds for retrial shall be dismissed as it is so decided as per Disposition