Seoul High Court-2017-Nu-31783 (2017.06.02)

As alleged in the ground of appeal, a new trial cannot be instituted against the final judgment that became final and conclusive on the grounds of a final judgment.

In a final appeal on a judgment subject to a retrial, regardless of whether a omission of judgment was alleged as the grounds of final appeal as alleged in the grounds of final appeal, a lawsuit for retrial may not be filed on the

Seoul High Court 2018Reu 1003 global income and invalidity of disposition

O KimO

O Head of tax office

Seoul High Court Decision 2017Nu31783 Decided June 2, 2017

April 4, 2018

May 9, 2018

1. All of the lawsuits and claims for payment of money for review of this case shall be dismissed.

2. After filing a new trial, all the costs of the lawsuit shall be borne by the Plaintiff (Plaintiff).

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the first instance is revoked. On December 1, 2007, the defendant (hereinafter referred to as the "defendant") confirmed that the disposition of imposition of global income tax of KRW 207,111,934 (including additional tax) against the plaintiff (hereinafter referred to as the "Plaintiff") on December 1, 2007 is null and void. The defendant shall pay the tax to be returned to the plaintiff and the amount calculated at the rate of KRW 5% per annum from the delivery date of the copy of the complaint of this case to the pronouncement date of the judgment of this case, and the amount calculated at the rate of KRW 15% per annum from the next day to the day of full payment (the plaintiff filed a claim for payment by combining the lawsuits of this case).

1. The circumstances leading up to the disposition and the decision subject to review

○ @@종합건설 주식회사(이하 '@@종합건설'이라 한다)는 2002년 무렵 ###산업개발 주식회사(이하 '###산업개발'이라 한다)로부터 ###프라자 상가건물의 신축공사를 도급받아 2003. 5. 무렵 이를 마쳤고, ###산업개발로부터 지급받은 공사대금과 관련하여 2002년부터 2003년까지 총 7,150,000,000원(부가가치세 포함)의 매출 및 그에 따른 부가가치세를 신고하였다.

○ **세무서장은 2006년 무렵 ###산업개발에 대하여 세무조사를 하던 중 위공사와 관련하여 @@종합건설이 ###산업개발에 대한 매출액 510,385,455원(부가가치세 포함 561,424,000원)에 관한 신고를 누락한 것이 확인되었음을 이유로 @@종합건설에 대하여 2006. 9. 1. 2003년 제2기분 부가가치세 51,038,545원 및 가산세 29,842,236원 합계 80,880,781원을 경정ㆍ고지하고, 2006. 9. 5. 위 매출액 전액의 귀속이 불분명하다고 보아 @@종합건설의 대표이사이었던 원고에 대한 인정상여로 소득처분하여 2003년 귀속 소득자 원고, 소득금액 561,424,000원으로 하는 소득금액변동통지를 하였다.

○ On December 1, 2007, the Defendant notified the Plaintiff of KRW 207,111,934 of the global income tax in 2003 (hereinafter “instant disposition”).

○ The Plaintiff filed a lawsuit on the ground that the instant disposition was null and void.

○ On December 8, 2016, the first instance court rendered a ruling dismissing the Plaintiff’s claim. While the Plaintiff filed an appeal against this, the appellate court rendered a judgment subject to a retrial that dismissed the Plaintiff’s appeal by citing the reasoning of the first instance court’s judgment on June 2, 2017, and the appellate court rendered a judgment subject to a retrial that dismissed the Plaintiff’s appeal by citing the reasoning of the first instance judgment on June 2, 2017. While the Plaintiff filed an appeal against this, the Supreme Court (2017Du49805) dismissed the Plaintiff’s appeal on August 31,

2. Whether the litigation of this case and the lawsuit of claim for payment are legitimate

A. The plaintiff's assertion

The Plaintiff asserts as follows. At the appellate court’s request, the appellate court issued an order to submit taxation information to △△△ regional tax office, but the appellate court rendered wrong answers *** in the family tax office, and accordingly there was omission in judgment on important matters that may affect the judgment in relation to the judgment subject to a retrial. Therefore, the judgment subject to a retrial constitutes grounds for retrial under Article 451(9) of the Civil Procedure Act, i.e., “when the judgment was omitted on important matters that may affect the judgment” under Article 451(9) of the same Act, the judgment of the first instance is revoked, and the disposition

B. Determination

1) In light of the proviso of Article 451(1) of the Civil Procedure Act applied mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, a lawsuit for a retrial cannot be filed against the judgment of the court of final appeal which became final and conclusive on the ground of appeal, which is alleged in the ground of appeal. If the judgment of the court of final appeal is omitted, the original copy of the judgment may be served, and if the judgment of the court of final appeal is omitted, it would be known to the party. Thus, unless there are any special circumstances, if the appeal was not asserted in the grounds of final appeal, it shall be deemed not to have been known, and thus, a lawsuit for retrial may not be brought. Ultimately, barring any special circumstances, regardless of whether the court of final appeal omitted judgment was asserted as the grounds of final appeal, the judgment of the court below cannot be a legitimate ground of final appeal (see, e.g., Supreme Court Decisions 201Du285, Mar. 29, 201; 2005Da58236, Jan. 12, 2014).

2) On June 2, 2017, a judgment subject to a retrial was rendered and rendered on June 9, 2017, and the Plaintiff filed a final appeal with the Supreme Court against the Plaintiff on the grounds that the original copy was served on the Plaintiff, and the Plaintiff was dissatisfied with the judgment subject to a retrial. However, on August 31, 2017, the final judgment became final and conclusive at that time as a result of dismissal of a final appeal due to the rejection of the final appeal on August 31, 2017, or as seen earlier, the Plaintiff cannot file a lawsuit for retrial on the grounds that the judgment subject to a retrial was omitted, regardless of

Furthermore, the Civil Procedure Act applicable mutatis mutandis to the administrative litigation procedure for the foregoing reason has a review system by a special method of filing an appeal to revoke the final judgment and re-examine the case that has not been concluded, only in exceptional cases where there are extenuating circumstances listed in the Civil Procedure Act (Articles 451 and 452 of the Civil Procedure Act), and only a separate lawsuit is allowed within a given period (see Supreme Court Decision 2015Da70822, Mar. 27, 2018). Therefore, it is reasonable to deem that filing a new claim by combining litigation in the retrial cannot be permitted unless special circumstances exist (see, e.g., Supreme Court Decision 2009Da41977, Sept. 10, 2009).

3. Conclusion

Therefore, all of the lawsuits seeking payment of money and the retrial of this case are unlawful (see, e.g., Supreme Court Decisions 80Da2126, Nov. 11, 1980; 91Da29057, Nov. 12, 1991).