Daejeon High Court 2014Nu11463 (2015.05)

A cause for retrial shall only be a cause for retrial under Article 451(1) of the Civil Procedure Act.

Grounds asserted by the Plaintiff do not constitute grounds for retrial under Article 451(1) of the Civil Procedure Act.

Article 451(1) of the Civil Procedure Act

Daejeon High Court 2016Nu15

Plaintiff, Review Plaintiff

Economic Zone

Defendant, Defendant for retrial

Head of Tax Office

The second instance decision

Daejeon High Court 2014Nu11463

oly 2016.15

oly 2016.18

1. Determination of the original judgment

The following facts are clear in records:

A. The Plaintiff’s father: “AA received OO(hereinafter referred to as “instant compensation”) from the OO Corporation as compensation for land in the P. XX.”; (b) the Director of the Daejeon Regional Tax Office: (a) conducted a tax investigation with respect to the Plaintiff from X. X. to X. 20 XX. X. x. XX. (hereinafter referred to as “the first tax investigation of this case”); (b) as a result, AA was identified to have donated KRW 00 million out of the instant compensation to the Plaintiff in cash; and accordingly, the Defendant determined and notified the OOO of gift tax by the Plaintiff to receive KRW 200 million from the OA; and (c) the Plaintiff paid the said gift tax in full at that time.

C. The Defendant confirmed that the Plaintiff opened a borrowed account under the name of AA in the course of investigating the reasons for delinquency in capital gains tax for the 20 XX years of X. X. A around 20 XX, and directly managed the said account, and conducted a tax investigation again with the Plaintiff from X. X. 200 to XX. 200. XX. (hereinafter referred to as “the second tax investigation”).

As a result of the second tax investigation of this case, the defendant confirmed that the compensation in this case was deposited in the OO account (Account Number: OOO) in the name of AA, that the sum of O00 million won was transferred to the bank account of BB, the plaintiff, the head of the plaintiff, and that X. of X. of 2000 million won, the plaintiff was excluded from O0 million won already imposed on AA, and that the gift tax was additionally donated to O0 million won, and the gift tax was excluded from O0 million won after it was corrected and corrected as O00,000,000 won was corrected and notified (hereinafter "the initial disposition in this case").

D. The Plaintiff filed an appeal with the Tax Tribunal on the initial disposition of this case 20 XX. X. X., but 20 XX. X. was dismissed.

E. The Plaintiff filed a suit against the Defendant for revocation of the initial disposition of this case against Daejeon District Court 2014Guhap10022, but the same court rendered a judgment dismissing the Plaintiff’s claim under Article 20 XX. X. X.

F. The Plaintiff appealed with this Court No. 2014Nu11463, and the Defendant filed an appeal for the first instance trial prior to the retrial on the grounds that he did not specify the grounds for the calculation of additional tax in the notice of tax payment in X. X. of the instant disposition, ex officio, specified the grounds for the calculation of additional tax on the gift tax of 20 XX (Additional Tax OO of the gift tax + Additional Tax OOO of the gift tax already paid by the Plaintiff).

Accordingly, the Plaintiff submitted an application for amendment to the purport and cause of the claim XX. The Plaintiff subsequently changed the purport of the claim in exchange for exchange, and this Court rendered the instant judgment subject to a retrial with the purport that “the Plaintiff’s appeal is dismissed, and the Plaintiff’s claim that was changed in exchange in the trial prior to the review is dismissed.”

G. The Plaintiff appealed to Supreme Court Decision 2015Du3918 on the grounds of misunderstanding of facts and misunderstanding of legal principles as to the judgment subject to a retrial, but on June 11, 2015, the final appeal was dismissed and became final and conclusive.

2. Whether a lawsuit for retrial is lawful;

A. The plaintiff's assertion

1) The public official in charge of the first tax investigation of this case has forged or fraudulently prepared a written answer (Evidence A No. 13) to AA, which is an official document at the time of the first tax investigation of this case. As such, there is a ground for retrial that the judgment subject to a retrial constitutes “when documents and other items as evidence of the judgment” under Article 451(1)6 of the Civil Procedure Act are forged or altered.

2) The Defendant’s litigation performer, while submitting a preparatory document as of March 21, 2014 during the first instance trial prior to review, may not be aware of the fact that the sum of the KRW O00 million was transferred from the bank account in the name of BB, the Plaintiff’s head, to the bank account in the name of BB, which is the Plaintiff, at the time of the first tax investigation of this case, at the time of the second tax investigation of this case. As such, there was a ground for retrial that the judgment subject to a retrial would have affected the conclusion of the judgment by making a false statement to the effect that “the Plaintiff was aware of the fact at the time of the second tax investigation of this case.” As such, there is a ground for retrial that “when the false statement by a witness, appraiser, interpreter, or

B. Determination

Article 451 (2) of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8 (2) of the Administrative Litigation Act, shall be able to file a lawsuit for retrial only when a judgment of conviction or a judgment of a fine for negligence has become final and conclusive or a final and conclusive judgment of a judgment of conviction or a fine for negligence cannot be rendered for reasons other than lack of evidence in the case of grounds for retrial falling under subparagraphs 4 through

Article 422 (2) of the Civil Procedure Act (Article 451 (2) of the current Civil Procedure Act) is to prevent harm to the other party's lawsuit. Thus, in the grounds for retrial under Article 422 (1) 4 through 7 of the same Act, if the requirements under Article 422 (2) of the same Act are not satisfied, the action for retrial based on the relevant grounds are unlawful. Thus, the grounds for retrial under subparagraphs 4 through 7 of the above Article should be dismissed without any decision as to its existence. The facts constituting legitimate requirements under Article 42 (2) shall be proved by the party who filed a lawsuit for retrial under Article 422 (1) 4 through 7 of the same Act (Article 451 (2) of the current Civil Procedure Act) or there was a possibility of proving that the judgment became final and conclusive upon the final and conclusive judgment of conviction, but it shall be proved that the suspect was dead, the statute of limitations of prosecution was completed, or the prosecution was suspended, or the final and conclusive judgment of conviction was not possible (see, etc.

In this case, there is no evidence to prove that the public official in charge of the production of evidence No. 13 and the defendant's litigation performer who submitted a preparatory document as of March 21, 2014, could not make a final and conclusive judgment of conviction or imposition of a fine for negligence for reasons other than lack of evidence.

According to the above, since it is apparent that the plaintiff's assertion did not meet the requirements under Article 451 (2) of the Civil Procedure Act as to each of the grounds for retrial of this case, the lawsuit of this case is unlawful without any need to determine whether or not there exists any grounds for retrial of the plaintiff's assertion itself (in particular, Article 451 (1) 7 of the Civil Procedure Act provides that the party or legal representative of the plaintiff makes a false statement in the process of "rogating the party" during the party's inquiry, and that the time when such party's false statement becomes evidence during the party's inquiry process, the grounds for retrial of the defendant's litigation performer's false statement alleged by

3. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed.