Cho Jae-2012-west-4279 ( December 18, 2012)

A revocation suit against a non-existent administrative disposition is illegal because there is no interest in the lawsuit.

A revocation suit against a non-existent administrative disposition is illegal because there is no interest in the lawsuit.

Article 19 of the Administrative Litigation Act subject to a revocation suit

2013Guhap7629 global income and revocation of disposition

○ ○

○ Head of tax office

March 6, 2014

June 26, 2014

1. The instant lawsuit shall be dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 645,896,070 on February 6, 2012 against the Plaintiff was revoked.

1. Details of the disposition;

A. From December 20, 1968, the Plaintiff’s mother AA owned 27,101 square meters in ○○○○○ ○○○○○ ○○ ○○ ○○ ○○ ○○ 1199-1 salt farm (hereinafter “instant 1 salt farm”) and ○○ ○ ○○ ○ ○ ○ ○ 2,231 square meters in 200-2 salt farm (hereinafter “instant 2 salt farm”). While the Plaintiff’s son (AA’s son) did not have received the instant 1 and 2 salt farm from AA, the Plaintiff’s son completed the registration of transfer of ownership by forging relevant documents. Since then BB died on March 13, 1986, the instant 1 and 2 salt was inherited to the heir of the instant 1 and 2 saltB as statutory inheritance.

B. AAB voluntarily discovered that BB had completed the registration of ownership transfer for the instant 1 and 2 salt, and filed a lawsuit against BB’s inheritors at the Busan District Court in 1986 to seek the registration of ownership transfer for the instant 1 and 2 salt (Seoul District Court 86Gahap1653 case). Meanwhile, BB filed a lawsuit against BB’s inheritors for the registration of ownership transfer for the instant 1 and 2 salt (the Busan District Court 86Gahap1653 case). Meanwhile, BB completed the registration of ownership transfer under its own name as to ○○○○○○ ○○○-1216-1 3,329 square meters of land 176/329 square meters in the same manner as the instant 1 and 2 salt.

다. 이후 위 부산지방법원 86가합XXXX 소송 사건의 진행 중 1987. 11. 20. 다음과 같은 내용의 소송상 화해(이하 '이 사건 화해'라 하고, 그 중 제1항을 '소유권이전등기 화해 조항', 제2항을 '처분대금분배 화해조항'이라 한다)가 성립되었다.

1. The successors of BB perform to AA each procedure for the registration of ownership transfer with respect to the instant 1, 2 salt and the instant land shares;

2. If Paragraph 1 does not comply with by March 3, 1988, 82,186,715 won shall be paid first to financial institutions, etc. and 1/2 out of the remainder shall be paid to AA and authorized persons from the proceeds from the disposal of the shares in the instant 1, 2 and the instant land.

D. AA, on February 29, 198, died after the legacy of the rights of BB to their successors, including the Plaintiff on the instant 1, 2 salt and the instant land share.

E. Parties, including the Plaintiff, to whom BB’s successors are entitled to transfer ownership during the instant reconciliation

In order to not perform the obligation under the settlement clause, among the settlement in this case, a civil suit was filed against the heir of BB on two occasions on the basis of the distribution clause of proceeds from the disposal of property in this case, and as a result, the plaintiff was sentenced to the purport that "the defendant would pay the plaintiff a sum of 650,270,622 won and damages for delay."

바. 원고는 위 판결에서 인정된 각 채권에 기하여, BBB의 상속인들의 공동소유재산에 대하여 실시된 부산지방법원 2007타경XXXX 부동산강제경매 사건에서 2008. 3. 12. 원금 650,271,622원 및 이자 1,341,597,706원 합계 1,991,869,328원을 배당받았다.

G. On February 6, 2012, the Defendant: (a) identified the Plaintiff’s above dividend amount of KRW 1,341,184,219 as other income under Article 21(1)10 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009); and (b) imposed upon the Plaintiff a disposition imposing global income tax of KRW 645,896,070 (including additional tax of KRW 180,621,691) (hereinafter “instant disposition”).

H. The Plaintiff was dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 4, 2012, but the Tax Tribunal dismissed the Plaintiff’s claim on December 18, 2012, and accordingly, filed the instant lawsuit on March 15, 2013.

I. On June 11, 2014, the Defendant revoked the instant disposition ex officio, and on June 13, 2014, refunded all the relevant tax amount to the Plaintiff.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 and 3, the purport of the whole pleadings]

2. Whether the lawsuit of this case is lawful

If an administrative disposition is revoked ex officio, the disposition no longer exists because it loses its effect.

A revocation suit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see Supreme Court Decision 2004Du5317, Sept. 28, 2006).

As seen in the background of the above disposition, the defendant revoked the disposition of this case while the lawsuit of this case is pending, and the lawsuit of this case seeking the revocation of the disposition of this case is unlawful.

However, since the cancellation of an retired disposition is due to the cancellation of the litigation cost pursuant to Article 32 of the Administrative Litigation Act.

The defendant bears the burden.

3. Conclusion

If so, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.