Seoul Central District Court 2010 Gohap73913 ( December 28, 2010)

The claim for refund of the unpaid refund cannot be deemed as seeking the return of illegal consideration.

(1) In the instant case where, as an exporter, no direct input tax amount was paid in the transaction of gold bullion, it cannot be deemed that the exporter seeks return of illegal consideration on a premise that the validity of such final judgment and the principle of good faith or the principle of illegal consideration are different from that of the illegal consideration. Therefore, the foregoing assertion is without merit.

2012Na72492 National Tax Refund, etc.

AAAA Company et al.

Korea

Seoul Central District Court 2010 Gohap73913 ( December 28, 2010)

December 5, 2012

January 23, 2013

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to be paid below is revoked, and the plaintiffs' claims for cancellation are dismissed.

Defendant,

(a) The amount of KRW 00 per day from February 25, 2005 to April 30, 2006, and 0.015% per day from the following day until October 14, 2007, and 0.0137% per day from the following day until April 30, 2009, and 0.093% per day from the following day until December 4, 2009, and 5% per annum from the following day to August 30, 2012, and 20% per annum from the following day to the date of full payment.

B. The plaintiff BBrst Co., Ltd. shall pay 00 won and the amount of 0.01% per day from February 25, 2005 to April 30, 2006, and 0.015% per day from the following day until October 14, 2007, and 0.0137% per day from the following day until April 30, 2009, and 0.093% per day from the following day until July 8, 2009, and 5% per annum from the following day until August 30, 2012, and 20% per annum from the following day to the day of complete payment.

2. The defendant's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The defendant, and with respect to the plaintiff AA company, 00 won, and 0.01% per day from February 25, 2005 to April 30, 2006, and 0.015% per day from the following day until October 14, 2007, and 0.0137% per day from the following day until April 30, 209, and 0.093% per day from the following day until December 4, 2009, and 200% from the following day to the delivery date of the complaint, and 30% per annum from the following day to the 0.0% from the following day to the 0.0%, and 10% from the 0.0% from the following day to the 0.30% from the 10.0% of annual payment, and 10.4% from the 20.0% from the following day to the 10.30% from the 10.15.4.20% from the following day to the 20.10.30% from the day to the 20.4.10.4.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court's explanation is as follows, adding to the judgment on the defendant's argument at the trial of the transmission of exchange, and after adding to the judgment on the defendant's argument at the trial of the court of first instance, and after adding to the judgment on the plaintiff's argument at the trial of the court of first instance 2, paragraph (3)(5)(2)(2)(3)(2)(3)(3)(4) of the judgment of the court of first instance, and 3.

2. Additional matters to be determined;

A. The defendant's assertion

The defendant asserts that the defendant's act of seeking refund of the unpaid input tax amount by asserting the deduction of the input tax amount is to obtain criminal proceeds through the crime of tax evasion and thus it is not allowed because it violates the principle of good faith stipulated in Article 15 of the Framework Act on National Taxes, and thus, it cannot be deemed that the defendant takes unjust benefits without legal grounds on the ground that the defendant's refusal of deduction or refund of the input tax amount constitutes an act contrary to the principle of good faith under the Civil Act or an act contrary to the claim for refund of the benefits arising from the illegal payment, even though he was aware that there was a malicious business operator who makes illegal transactions for the purpose of evading the output tax amount in the course of a series of transactions, and thereby, he actively participated in such illegal transactions or participated in the remaining transactions without knowledge of such circumstances due to gross negligence.

B. Determination

However, as the judgment revoking the imposition of the second and second tax notice becomes final and conclusive, the plaintiffs can seek a refund of the amount equivalent to the unpaid amount of the tax amount determined in its existence and scope against the defendant, and the defendant also cannot dispute the existence or scope of the tax amount confirmed as above due to res judicata or binding force of the above final and conclusive judgment, and the defendant has a duty to refund the amount equivalent to the unpaid tax amount to the plaintiffs. Accordingly, the plaintiffs, who are in legal status, seek a refund of the unpaid tax amount by the lawsuit against the defendant in accordance with the purport of the final and conclusive judgment, cannot be deemed as the exercise of rights contrary to the principle of good faith under the Civil Act (the same applies even in cases where the tax legal relationship established in the first and second revocation lawsuits does not coincide with the substantive legal relationship or there is room to view that the plaintiffs' assertion at the time is not acceptable in light of the principle of good faith). Moreover, in this case where the plaintiffs did not directly pay the input tax amount, it cannot be deemed that the plaintiffs seek a refund of the unpaid tax amount to the defendant, and thus, the above legal principle on the validity and good faith or other premise.

3. Parts of scraping;

Therefore, the defendant's tax refund of 00 won and 00 won not paid to the plaintiff AA, and 200 won, and each of these taxes are not paid to the plaintiff BB, and it is reasonable to accept 30% of the tax refund from the 20th judgment to the 30th judgment of the court of first instance as to whether the defendant's obligation to return was returned to the 20th judgment of the court of first instance for the period from February 25, 2005 to April 30, 2006, and the rate of 0.01% from the 20th judgment to the 20th judgment of the court of second instance for the period from the 20th judgment to the 20th judgment of the court of second instance for the period from the 30th day after the 200th day after the 30th day after the 200th day after the 20th day after the 20th day after the 20th day after the 20th day after the remand.

4. Conclusion

Therefore, the plaintiffs' claims shall be accepted within the above recognized scope, and the remaining claims shall be dismissed as without merit, and the judgment of the court of first instance shall be unfair in conclusion with respect to part of the damages for delay, and this part shall be revoked, and the claims of the plaintiffs falling under the cancelled part shall be dismissed, and the remaining appeals of the defendant are dismissed as it is so decided as per