Busan High Court 2009Nu1105 ( December 23, 2009)

Cho High Court Decision 2007Da5120 (Ob. 20, 2008)

No grounds for retrial exist, and dismissed.

The mere fact that no evidence has been accepted after the conclusion of the pleading, or that a new evidence was submitted while requesting a retrial after the judgment became final and conclusive cannot be deemed to constitute grounds for retrial, i.e., grounds for retrial, and it cannot be deemed that the judgment subject to retrial omitted the judgment on important matters affecting the judgment, and thus, dismissed as grounds for retrial

2011Revocation of revocation of the imposition of value-added tax

Quantity XX

O Head of tax office

Busan High Court Decision 2009Nu1105 Decided December 23, 2009

June 10, 201

July 8, 2011

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).

Purport of request for retrial

The judgment of the first instance is revoked. The disposition of imposition of value-added tax of KRW 285,06,080 on August 8, 2007 by the defendant (hereinafter referred to as the "defendant") against the plaintiff (hereinafter referred to as the "Plaintiff") and the designated parties (hereinafter referred to as the "Plaintiff") shall be revoked on August 8, 2007.

1. Determination of the original judgment

The Plaintiff filed a lawsuit against the Defendant as Busan District Court 2008Guhap2089, the Busan District Court dismissed the Plaintiff’s claim on January 15, 2009. However, the Plaintiff appealed as Busan High Court 2009Nu1105, but the above court dismissed the Plaintiff’s appeal on December 23, 2009. Although the Plaintiff filed a second appeal as Supreme Court 2010Du1798, May 13, 2010, it is obvious that the judgment subject to retrial became final and conclusive as the Plaintiff’s appeal was dismissed.

2. The plaintiff's assertion

The court of first instance rendered a judgment against the Plaintiff after receiving data from a merchandise coupon issuer, thereby referring to inquiries about the current status of sales of merchandise coupons reported to the Korea Game Industry Development Institute. However, the court of first instance reported the sales of merchandise coupons that the head of XX Nam Headquarters reported to the relevant NTT to the Busan and Gyeongnam branch was falsely reported that the sales of merchandise coupons sold to the relevant unauthorized games in the instant game site, and there was no fact that the Plaintiff traded merchandise coupons with the Yong-Nam headquarters in the instant game site.

Therefore, the plaintiff requested the appellate court to verify whether the current sales status data of gift certificates are true or not through the inquiry of the tax accountants EA and the Korea Game Industry Promotion Agency, which performed the business of reporting the corporate tax of the XXT Yong Headquarters on behalf of the plaintiff, but the judgment subject to a retrial was rendered a judgment against the plaintiff without omitting the judgment of the plaintiff on such assertion.

However, recently, it was recognized that the representative director of the XXT Yong-Nam Headquarters KimB did not sell gift certificates in the game of this case.

Therefore, there are grounds for retrial falling under Article 8(2) of the Administrative Litigation Act and Article 451(1)9 of the Civil Procedure Act in the judgment subject to a retrial.

3. Determination

A. As to the grounds for retrial

When a judgment is rendered through litigation procedures due to a dispute in court, and a judgment becomes final and conclusive through appeal procedures, the lawsuit shall be concluded. The contents of the final and conclusive judgment shall be binding as a new rule governing the parties and the court, and if there is a problem subsequent to the unification, the parties cannot file a lawsuit over the final and conclusive judgment against the contents of the final and conclusive judgment, and no court may pronounce a judgment inconsistent with or inconsistent with the final and conclusive judgment after re-examination on a uniform case.

The effect of a final and conclusive judgment, i.e., res judicata, which is called "the effect of res judicata", is included in the demand for legal stability based on the final and conclusive judgment of a trial agency as to a dispute between the parties. If such effect is not recognized and a lawsuit can be brought again even after the final and conclusive judgment is rendered, the legal dispute between the parties would not be resolved smoothly, and ultimately, the damage of both the parties to the lawsuit is considered, and the social confusion is aggravated.

However, there may be cases where a new trial may be conducted exceptionally for a certain period of time when there is a serious defect that cannot be implicitly silent in the contents of the judgment, and it is a new trial system. The case where there is such a serious defect is called "reasons for a new trial". If a new trial is allowed even though it has not been revealed that there is a serious defect, the dispute will continue to exist. In other words, the grounds for a new trial is strictly limited due to the reasons stipulated in Article 451 of the Civil Procedure Act, which is applied mutatis mutandis by Article 8(2) of the Administrative Litigation Act.

If it is not recognized that there are grounds for a retrial under Article 451 of the Civil Procedure Act, the court cannot re-examine the case in accordance with res judicata.

B. As to whether there is "reasons for review" in the instant case

As the plaintiff asserts in the judgment subject to a retrial, we examine whether there are grounds for retrial under Article 451(1)9 of the Civil Procedure Act.

Article 451(1)9 of the Civil Procedure Act provides that "when a judgment is omitted on important matters that influence a judgment," the grounds for retrial shall be determined as follows: Provided, That the meaning of the grounds for retrial refers to an attack and defense method submitted by the parties, which may affect the conclusion of the judgment, and where a judgment is not indicated in the reasoning of the judgment, it shall not be deemed that the judgment was omitted even if the judgment was erroneous (see Supreme Court Decision 93Nu97 delivered on June 22, 1993).

In light of the above legal principles, this case is examined.

In a lawsuit subject to review, the fact that the Plaintiff applied for the resumption of pleading after the closing of argument and applied for a fact inquiry to the above EA and the Korea Game Industry Promotion Agency, but not yet accepted, and the fact that the Plaintiff newly applied for a retrial and submitted a fact-finding confirmation in the name of the representative director at the headquarters KimB to this court is apparent in the record.

However, the argument that there was no acceptance of the application for examination of evidence after the closure of pleadings, or that there was a new evidence in the course of requesting a retrial after the final judgment became final and conclusive does not constitute a deviation of judgment under Article 451(1)9 of the Civil Procedure Act. The argument that there was no plaintiff's purchase of merchandise coupons from the headquarters of Yong-Namnam Headquarters, which was sufficiently deliberated in the course of the lawsuit subject to retrial, and that it was obvious that the decision subject to judgment was made in the judgment subject to retrial, is a substantial fact in this court. Thus, it cannot be deemed that the judgment subject to review omitted

Therefore, there is no ground for retrial in the judgment subject to review.

4. Conclusion

Therefore, the lawsuit of this case is dismissed as it is unlawful.