Seoul High Court-2017Nu39923 ( December 21, 2017)

Omission of judgment on matters not asserted by the parties shall not be deemed grounds for retrial.

"When the judgment is omitted on important matters that may affect the judgment" refers to cases where the judgment is not clearly stated in the reasoning of the judgment concerning the means of attack and defense submitted by the parties, which are affected by the judgment, and where the omission of judgment on matters that the parties did not assert, cannot be considered as grounds for retrial.

Article 451 of the Civil Procedure Act: Grounds for Retrial

Seoul High Court 2018Reu 129 Revocation of Disposition imposing capital gains tax

SCC

AA Head of the Tax Office

Judgment of the court of first instance

Seoul High Court Decision 2017Nu39923 Decided September 21, 2017

o October 22, 2018

November 14, 2018

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff (the plaintiff and the selected party).

All the judgment subject to a retrial and the judgment of the first instance are revoked. Defendant (hereinafter referred to as “Defendant for a retrial”);

Transfer to the Plaintiff (hereinafter referred to as “Plaintiff”) on November 1, 2014, which reverts to the Plaintiff in 2011.

Income tax****,***,230 won disposition of imposition and selection** the transfer income tax reverted to year 201

**,**,340 won shall be revoked in all.

1. Determination of the original judgment

The following facts are clear in records:

A. On November 1, 2014, the Defendant: (a) deemed that the Plaintiff and the ZZ transferred the Plaintiff’s share *** Dong****-15 large*,034 square meters (hereinafter referred to as “instant land”) *.25/1,213 of the Plaintiff’s share **.25/1,213 of the Appointed and the Selected head’s share ***.9/1,213 (hereinafter referred to as “instant shares at once”) on February 14, 2011; and (b) considered that the Plaintiff transferred the instant shares ***,294,230 won (including additional taxes; hereinafter the same shall apply); and (c) imposed a disposition of imposition of capital gains tax *,860,340 won (hereinafter referred to as “each disposition”).

B. The Plaintiff and the designated party head of the Seoul Administrative Court filed a lawsuit seeking revocation of each of the instant dispositions under the Seoul Administrative Court Decision 2016Gudan52319. On February 3, 2017, the said court rendered a judgment of the first instance court that dismissed all of the instant claims.

C. On September 21, 2017, the Plaintiff and the designated parties appealed to the judgment of the first instance court as 2017Nu39923, but this court rendered a judgment subject to a retrial to dismiss all appeals under the Plaintiff and the designated parties head XX.

D. On October 20, 2017, the Plaintiff and the designated parties dissatisfied with the judgment subject to a retrial, and appealed by Supreme Court Decision 2017Du68769 Decided October 20, 2017. On February 28, 2018, the Supreme Court dismissed all of the above appeals due to the continuous deliberation in accordance with Article 4 of the Act on Special Cases Concerning the Procedure for Appeal. The said judgment was served to the Plaintiff and the designated parties on March 2, 2018.

2. Whether the litigation for retrial of this case is legitimate

A. The plaintiff's assertion

The time of the transfer of the shares in this case was not February 14, 201, which was decided in the judgment subject to a retrial, but the time of the transfer of the shares in this case was not February 14, 201, but the date of the acquisition of the ownership of the land in this case and the right to sell the shares in this case by the plaintiff and the selected parties ** old **** Dong ************-*-02 (hereinafter referred to as the "number apartment of this case") from among the main complex buildings newly constructed on the lands of this case *****-29, and the date of the acquisition of the right to sell the shares in this case on December 5, 207, the plaintiff and the selected parties ** real estate trust and stock company **** the time of the transfer of the shares in this case's judgment subject to a retrial was omitted as to whether December 5, 2007 at the time of the conclusion of the sale

B. Determination

1) “Where a judgment is omitted with respect to an important matter that may affect the judgment” under Article 451(1)9 of the Civil Procedure Act, which is applicable mutatis mutandis under Article 8(2) of the Administrative Litigation Act, refers to the case where a party does not specify the judgment in the reasoning of the judgment with respect to an offence and defense which the party submitted in a lawsuit and has an influence on the judgment (see, e.g., Supreme Court Decision 2011Du100, Dec. 8, 2011). The matters for which the party did not assert or urge

As it is not possible (see, e.g., Supreme Court Decision 88Nu5570, May 23, 1989), omission of judgment on matters not asserted by the parties cannot be deemed grounds for retrial (see, e.g., Supreme Court Order 82Nu19, Dec. 29, 1983; Supreme Court Decision 94Nu32, Nov. 8, 1994). However, according to the records, the Plaintiff and the designated parties did not assert that the time when the shares of this case were transferred during the pleadings at the time of the judgment subject to retrial was the date when the sale contract was concluded, which was the date when the right to sell the unit of the unit of this case was acquired at the time of the judgment subject to retrial, was not December 5, 2007, which was the date when the sale contract was concluded. Even if the judgment was not separately determined in the judgment subject to retrial, there is

2) In addition, the proviso of Article 451(1) of the Civil Procedure Act provides that a party may not file a lawsuit for a retrial if he/she had asserted a cause for a retrial by an appeal, or if he/she did not know that it was known, barring any special circumstance, such as omission of judgment, the party becomes aware of such cause through the service of the original copy of the judgment. Therefore, if no appeal was filed against a judgment subject to a retrial and the ground for appeal was asserted for omission of judgment, it may not be considered a cause for a retrial under the proviso of Article 451(1) of the Civil Procedure Act (see, e.g., Supreme Court Decisions 88Nu5570, May 23, 1989; 2010Da1517, Apr. 29, 2010). However, according to the records, the Plaintiff and the head of the designated party, while filing an appeal against the judgment subject to a retrial, even if the time of transfer of the shares of this case was omitted on December 5, 2007.

3) Therefore, the grounds for retrial of this case asserted by the Plaintiff do not constitute legitimate grounds for retrial.

3. Conclusion

As such, the lawsuit of this case is unlawful and thus, it is decided as per Disposition.