In order to become unjust enrichment, it is recognized that profit is obtained without legal cause and damage is inflicted on others.

The unjust enrichment is recognized only when a person obtains a benefit from another person's property or labor without any legal ground and causes a loss to another person. The Plaintiffs filed a claim for unjust enrichment as an attorney-at-law for the services on constitutional complaint, not subject to tax exemption, and did not inflict a loss on the property of the Plaintiffs.

The contents of the decision shall be the same as attached.

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

피고는 원고 김〇하에게 200,000원, 원고 박〇원에게 270,000원과 위 각 돈에 대하여 이 사건 소장부본 송달 다음날부터 다 갚는 날까지 연 20%의 비율로 계산한 돈을 지급하라.

1. Basic facts

A. Plaintiffs are attorneys-at-law.

나. 원고 김〇하는 2007. 2. 1.경 최〇실로부터 의정부지방검찰청 검사의 불기소처분에 대한 헌법소원심판청구를 수임하여 수임료 200만 원과 부가가치세 20만 원을 수령하여 2007. 7. 25. 위 부가가치세를 피고에게 신고, 납부하였다. 원고 박〇원은 2005. 12. 19.경 유〇호로부터 서울서부지방검찰청 검사의 불기소처분에 대한 헌법소원심판청구를 수임하여 수임료 270만 원과 부가가치세 27만 원을 수령하여 2006. 1. 25. 위 부가가치세를 피고에게 신고, 납부하였다.

[Ground for recognition] Unsatisfy

2. The plaintiffs' assertion

Article 12 (1) of the Value-Added Tax Act, which provides the basis for the return and payment of the value-added tax, provides that if the above provision is unconstitutional, it violates the Plaintiff’s fundamental rights, such as the right to trial, property rights, the right to pursue happiness, etc. guaranteed by the Constitution, and is contrary to the general principles of the Constitution, such as equal taxation, and thus, it should be returned to the Defendant as unjust enrichment because the Plaintiffs’ return and payment of value-added tax to the Defendant

3. Determination

The unjust enrichment is recognized only when a person gains profit from another person’s property or labor without any legal cause and causes loss to another person. Accordingly, in order for the Plaintiffs to file a claim for return of unjust enrichment against the Defendant, the payment of the above value-added tax must cause damage to the Plaintiffs. However, as alleged by the Plaintiffs, Article 12(1) of the Value-Added Tax Act excludes the service of an attorney on the constitutional complaint against the Defendant, which is subject to the exemption of value-added tax, and thus, if the services regarding the attorney’s constitutional complaint are to be included in the scope of exemption, the attorney may not collect value-added tax from the counterparty pursuant to Article 15 of the same Act even if he/she accepts the case regarding the constitutional complaint and provides the service. In this case, even if the service of the attorney on the constitutional complaint is included in the exemption of value-added tax, it leads to the result that the attorney cannot collect value-added tax as stated

3. Conclusion

Therefore, even if Article 12(1) of the Value-Added Tax Act is unconstitutional as alleged by the plaintiffs, there is no damage inflicted on them, and thus, the claim for return of unjust enrichment in this case under the premise that the plaintiffs suffered damage is no longer reasonable.