(영문) 서울고등법원 2016.05.17 2014누43679

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Reasons

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크기(pt)

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줄 간격

자간(%)

(영문) 서울고등법원 2016.05.17 2014누43679

취득세등부과처분취소

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1. The part of the judgment of the court of first instance against the plaintiff shall be revoked.

2. Of the instant lawsuit, the Defendant against the Plaintiff on July 4, 2013.

Reasons

1. In the first instance trial on July 4, 2013, the Plaintiff sought revocation of the acquisition tax of KRW 5,760,040, and the local education tax of KRW 576,00,00, and KRW 288,000 (including additional taxes), which was paid by the Defendant to the Plaintiff, as well as KRW 6,624,040 (including additional taxes), and the court of the first instance rejected the remainder of the claim.

Therefore, since only the plaintiff has lodged an appeal against the losing part, the scope of the judgment of this court is limited to the acquisition tax of KRW 5,200,000, the main tax of KRW 5,760,000, the local education tax of KRW 576,00,00, the main tax of KRW 520,000, and the special rural development tax of KRW 288,000, the main tax of KRW 260,000, which is the part against the plaintiff.

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

3. Where an administrative disposition is revoked as to the above principal tax of the instant lawsuit, 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 Supreme Court Decision 2012Du18202 Decided December 13, 2012). The fact that the Defendant revoked the instant disposition ex officio on April 28, 2016 is apparent in the record. As such, the part regarding the claim for revocation regarding each principal tax of the instant lawsuit is unlawful as there is no benefit of lawsuit, since it is apparent that the Defendant revoked the instant disposition ex officio.

4. Therefore, the part of the claim for revocation of each of the above principal amounts in the lawsuit of this case shall be dismissed as unlawful. Since the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiff in the judgment of the court of first instance shall be revoked and the above part of the principal amount in this case shall be revoked.

참조조문

-민사소송법 제420조

-행정소송법 제8조 제2항

참조판례

-대법원 2012.12.13. 선고 2012두18202 판결

유사 판례

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