Whether or not an administrative litigation is included in a judicial claim under Article 170 of the Civil Act which has the effect of interrupting prescription.

A judicial claim having the effect of interrupting prescription under Article 170 of the Civil Code shall be a civil lawsuit, and an administrative litigation aimed at seeking the cancellation or change of an illegal administrative disposition by an administrative agency or its affiliated agency shall not be a ground for the interruption of extinctive prescription.

Article 170 of the Civil Act

Daesung Industrial Company

Korea

Seoul Central District Court (76Gahap853) in the first instance trial

1. Revocation of the part against the plaintiff among the original judgment against which payment is ordered in the following paragraphs.

2. The defendant shall pay to the plaintiff the amount of KRW 5,067,387 and the amount of KRW 100,000 from August 7, 1969 to January 31, 1973 at the rate of 5:0 won from February 1, 1973 to the date of full payment.

3. The plaintiff's remaining appeal is dismissed.

4. All the costs of lawsuit are divided into four parts of the first and second instances, and three parts are assessed against the plaintiff, and the remainder is assessed against the defendant.

The original judgment shall be revoked.

The defendant shall pay to the plaintiff 20,813,352 won with 10,136,860 won from July 8, 1969; 10,676,492 won with 100 won from August 7, 1969 to 100 won from August 7, 1969.

The judgment that all the costs of lawsuit shall be borne by the defendant in the first and second trials.

1. First, we judge the defendant's main defense of safety.

The defendant litigation performer is a safety defense. The plaintiff company is dissolved by the decision of dissolution of the Seoul District Court Incheon Branch of the Seoul District Court on January 31, 1975 and completed the registration of dissolution on June 10, 1976. This lawsuit is brought by a person who is not capable of being a party to the lawsuit since the mediation date, which is the representative director of the plaintiff company, has already been dissolved on March 24, 1976. Since the mediation date, which is the representative director of the plaintiff company, is not appointed as a liquidator after dissolution of the company, the above mediation date is naturally lost as the representative of the plaintiff company, and the plaintiff's attorney appointed by the non-representative without the authority to represent the plaintiff company is null and void as a lawsuit without authority, and the defendant company is not subject to dissolution or dissolution of the plaintiff company after dissolution of the plaintiff company within the limit of 1975. The defendant company's dissolution or dissolution of the defendant company, which is not subject to dissolution after dissolution of the plaintiff's dissolution after dissolution of the plaintiff company.

2. The following arguments shall be examined:

In determining the amount of income serving as tax base for each of the three years from October 1, 1965 to September 30, 1966 by the director of the tax office of Busan District Tax Office, the amount of income from October 1, 1965 to September 30, 196 (this refers to the business year of 1965), from October 1, 196 to September 30, 1967 (this refers to the business year of 1966) and from October 1, 1967 to September 30, 1968 (this refers to the business year of 1967), the amount of interest recognized as advance payment for each of the three years mentioned above shall be estimated as stated in attached Table 16.2, and the difference between the plaintiff and the 2.3 years of tax payment shall be calculated as income amount omitted as stated in attached Table 196.2, and the corporate tax shall not be imposed as the difference between the plaintiff and the 16.3 years of tax revenue for each business year (the 196.196.2).2).2).

Therefore, with respect to the above taxation of Class A earned income in the business year 1965 and the business year 1966, if the amount of the corporation's income exceeds the amount of the reported income, Article 12 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act at the time of the above taxation is deemed as invalid because it is not based on the Corporate Tax Act or the Enforcement Decree of the Corporate Tax Act at the time of its mother corporation, and thus, the above taxation should be deemed as null and void in violation of the principle of no taxation without law (see Supreme Court Decision 71Da2516 delivered on January 31, 197, 196, and Article 83 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act at the time of the above investigation, and Article 12 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act at the time of its enactment of the Act at the time of 197Da16820 delivered on July 16, 1967.

However, according to Article 103 (2) of the National Tax Collection Act at the time of the litigation performer, the claim against the State arising from erroneous payment of national taxes is extinguished by prescription if it is not exercised for 5 years from the time it can exercise its right. In this case, the plaintiff company could exercise its right to claim the return of unjust enrichment when it pays the above tax to the defendant, barring special circumstances. Thus, in this case where it is evident that the lawsuit was instituted 5 years after the date of the payment of the above tax, the plaintiff company's right to claim the return of erroneous payment is extinguished by prescription. Thus, the plaintiff's claim for return of erroneous payment is not reasonable. The plaintiff company's legal representative did not have the right to claim the return of unjust enrichment within 5 years from the date of payment of the tax to the Seoul High Court (73Gu401). Since the plaintiff company's right to claim the return of unjust enrichment is no longer effective by the plaintiff company's first claim for return of unjust enrichment within 9 years from the date of its original decision to the Supreme Court.

In light of the former National Tax Collection Act (Act No. 819 of Dec. 9, 1962), and Article 103(2) of the same Act (see current Article 54(1) of the Framework Act on National Taxes), as alleged by the defendant, it is clear that the period of extinctive prescription expires unless the claim for refund due to erroneous payment or erroneous payment is exercised for five years from the date on which the national tax can be exercised. The special provision is intended to prevent confusion in the national administrative tax that may arise when the legal relationship arising from erroneous payment or erroneous payment of the national tax is determined as soon as possible, thereby preventing confusion in the national tax that may arise when the national tax is in unstable for a long time. Thus, even if the claim for refund of erroneous payment or erroneous payment has the nature of the right to claim for return of unjust enrichment under the Civil Act, it is reasonable to view that the period of extinctive prescription is five years in accordance with the above provisions of the National Tax Collection Act.

(Non-specified, there is no special provision regarding the period of extinctive prescription of the right to request the return of unjust enrichment under the Civil Act, and therefore, it is deemed ten years pursuant to Article 162(1) of the Civil Act setting the period of extinctive prescription. However, even if a claim has the same nature of the right to request the return of unjust enrichment as provided in special Acts, if there is a different provision regarding the period of prescription,

However, as seen earlier, this case is examined as to the starting point of the statute of limitations. Article 12 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act (Ordinance No. 400) or Article 83 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act (Presidential Decree No. 319) which was previously enforced. This case is also one of the following facts: (a) it is deemed that the income of the Plaintiff Company was a bonus for its representative and was withheld from the Plaintiff Company; (b) the above nature of taxation has been recognized as legitimate taxation; (c) but the Supreme Court's decision was also based on the above provision of Article 83 (2) 2 (c) of the Enforcement Decree of the Corporate Tax Act (Presidential Decree No. 1960) which was previously issued on December 20, 197, which had not been enacted on the basis of the above provision of the Enforcement Decree of the Corporate Tax Act No. 971, Dec. 16, 196.

Therefore, in this case based on Article 83(2)2(c) of the Enforcement Rule of the Corporate Tax Act, the right to claim the return of 5,067,387 won in total in the business year of 1965 and the business year of 1966 to the total amount of 5,067,387 won in the business year of 1967, based on the Supreme Court decision that the pertinent provision is null and void, and the right to claim the return of 15,745,938 won in the business year of 1967 based on Article 12(2)2(c) of the Enforcement Decree of the Corporate Tax Act has run from December 20, 1970 when the Supreme Court decision that the pertinent provision is null and void. Moreover, the plaintiff's attorney's claim for a judicial suit with the effect of interrupting prescription under Article 170 of the Civil Act should be a civil lawsuit, and administrative litigation for seeking the cancellation or change of an illegal administrative disposition by the administrative agency or its affiliated agency is not proved.

Therefore, the part of the plaintiff's claim for the return of 15,745,938 won, which is apparent from the date of filing the lawsuit on March 24, 1976, which was the date of the decision of the Supreme Court rendered on December 20, 1970, was filed five years after the date of the decision of the Supreme Court rendered on March 24, 1976. The part of the plaintiff's claim for the return of 15,745,938 won was filed after the expiration of the five-year statute of limitations, and the plaintiff's claim for this part was extinguished by the statute of limitations. The plaintiff's claim for the return of 5,067,387 won was filed before the lapse of five years from the date of the decision of the Supreme Court rendered on January 31, 1972. Thus, the part of the plaintiff's claim for the return of 5,067,387 won was not completed.

As to the initial date of calculating interest on the above erroneous payment, the plaintiff company paid 10,136,860 won, and 10,676,492 won, from July 7, 1969, by dividing the total amount of 20,813,352 won paid in 20,136,860 won and 10,67,387 won to the plaintiff on August 6, 1969. The initial date of calculating interest on the amount overpaid or erroneously paid in 5,067,387 won to the plaintiff should be calculated from the day following the last payment date pursuant to Article 52 subparagraph 1 of the current National Tax Collection Act (Act No. 1961 of Nov. 29, 1967) of the former National Tax Collection Act (Act No. 1961 of Nov. 29, 1967). In this case, the initial date of calculating interest on the refund of the above erroneous payment should be calculated from August 7, 1969.

In addition, according to Article 100 (1) of the former National Tax Collection Act (Act No. 1961 of Nov. 29, 1967), the interest rate for the refund amount is set to be added to the refund amount for 100 won, but Article 100 (1) of the former National Tax Collection Act (amended by Act No. 2458 of Feb. 1, 1973) and Article 103 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 6499 of Feb. 14, 1973), the rate of interest for the refund amount of 10 won is set to be reduced to 20 won before the first half of the date, and the rate of interest for the refund amount is set to be adjusted to 30 won from Aug. 1, 1969 to 10. 17. 197. 20

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the amount of KRW 5,067,387 from August 7, 1969 to January 31, 197, the amount of KRW 100 with the rate of KRW 100 from February 1, 1973 to the full payment rate of KRW 100 with the rate of KRW 50 per annum. Thus, the plaintiff's claim in the principal lawsuit is justified within the above recognition limit, and the remainder shall be cited within the above recognition limit, and the original judgment shall be dismissed in its entirety. Since the original judgment has different conclusions, the plaintiff's appeal is unfair, and the part of the original judgment is revoked, and the part of the original judgment is revoked, and the remaining appeal of the plaintiff is dismissed as without merit, and it is so decided as per Disposition by the application of Articles 96 and 92 of the Civil Procedure Act with respect to the bearing of litigation costs.

Judges Lee Byung-chul (Presiding Judge)