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(영문) 부산고등법원 (창원) 2018.11.14 2018누10579
증여세부과처분취소
Text

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. The total costs of the lawsuit shall be borne by the defendant.

Reasons

1. The reasons why the court should explain this part of the disposition are the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. We examine ex officio whether the lawsuit of this case is legitimate, and if an administrative disposition is revoked, the disposition becomes null and void, and no longer exists. A revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit.

(see, e.g., Supreme Court Decision 2009Du16879, Apr. 29, 2010). In full view of the overall purport of pleadings in each of the entries in evidence Nos. 14-1 through 3, the Defendant may recognize the fact that the instant disposition was revoked on October 11, 2018 while the instant lawsuit is pending.

The lawsuit of this case is seeking the revocation of a disposition that has not been extinguished and became unlawful as there is no interest in the lawsuit.

3. The decision of the court of first instance should be revoked and the lawsuit of this case shall be dismissed, and the total costs of the lawsuit of this case shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act. It is so decided as per Disposition.

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