Whether the national tax refund and national tax refund under Articles 51 and 52 of the Framework Act on National Taxes, or the decision of refusal to refund is a disposition subject to appeal litigation (negative)

(Majority) Articles 51 and 52 of the Framework Act on National Taxes and the provisions pertaining to the determination of national tax refund and national tax additional dues are merely stipulated in the procedures for refund of national tax and additional dues for which the tax payer’s right to claim refund has already become final and conclusive as a result of the determination of the national tax refund (including additional dues). Thus, the right to claim refund is not determined as a result of the determination of the national tax refund or the decision of refusal to claim refund, and it is not a disposition that has a specific and direct effect on the existence or scope of the right

(N) If a taxpayer suffers loss due to the failure to refund the money to the taxpayer in violation of the provisions of Article 51 of the Framework Act on National Taxes even if the decision to refuse the refund by the director of the tax office on the taxpayer's request is not a formative effect of directly causing the right to claim the refund of the refund, but only within the confirmative meaning, the taxpayer can contest that the decision is unreasonable by

Articles 51 and 52 of the Framework Act on National Taxes, Article 2 of the Administrative Litigation Act

Supreme Court Decision 85Nu565 Decided September 8, 1987, 87Nu438 Decided February 23, 1988, Supreme Court Decision 85Nu883 Decided January 31, 1989

[Judgment of the court below]

Head of the Tax Office;

Seoul High Court Decision 86Gu1113 delivered on April 20, 198

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. The plaintiff's attorney's grounds of appeal Nos. 1, 3 and 4 are also examined.

(1) According to Articles 51(1) and 52 of the Framework Act on National Taxes and Article 30 of the Enforcement Decree of the same Act, the head of a tax office shall immediately determine the amount of erroneous payment, excess payment, or refundable tax out of the amount paid by a taxpayer as a national tax, additional dues, or disposition fee for arrears, as a national tax refund, and at the same time determine the amount of additional refund on refund of national taxes according to the legal regular calculation date and interest rate, and add

The term "amount of erroneous payment" refers to the amount of tax paid or collected in spite of the absence of a declaration (in the case of a declaration of tax payment) or a disposition of imposition (in the case of a declaration of tax payment), which serves as the basis of the payment or collection, or the taxation disposition (in the case of a declaration of tax imposition), is null and void, and the amount of tax paid in excess refers to the amount of tax reduced in whole or in part as a result of revocation or correction thereof, although a declaration of tax or a disposition of imposition is not null and void as a matter of course, and the amount of tax refunded was lawfully paid or collected but the State did not have justifiable grounds to hold thereafter, and thus, the amount of tax paid in excess, the amount of tax paid in excess, and

Therefore, a taxpayer’s right to claim the return of unjust enrichment is already determined at the time of payment or collection, since there is no legal cause from the beginning in the case of an erroneous payment, and in the case of an excessive payment, it is determined at the time when all or part of the tax liability is extinguished by the revocation or correction of the return or disposition, and in the case of an amount of refund, it is determined according to the requirements for refund provided for in each tax law. And when each of the above national tax refund becomes final and conclusive, the refund amount is naturally determined in accordance with the initial date and interest rate as stipulated in

Ultimately, Articles 51 and 52 of the Framework Act on National Taxes concerning the refund of national taxes and the determination of national taxes, additional dues and additional dues for which the tax payer’s right to claim refund has already become final and conclusive, are not merely an internal administrative procedure that provides for the refund procedure by the tax authorities, but only a claim for refund is determined by the determination of national tax refund (including additional dues) under the above provision. Thus, the above determination of national tax refund or the determination of refusal of refund as to the request for this determination is not a disposition that has a specific and direct effect on the existence or scope of

A party member has already expressed the above opinion. A party member does not feel a need to modify it even now at this time (see, e.g., Supreme Court Decisions 87Nu438, Feb. 23, 1988; 85Nu883, Jan. 31, 1989); 86Nu153, Sept. 9, 1986; 86Nu197, Feb. 10, 1987; 86Nu877, Jun. 9, 1987; 86Nu875, Feb. 28, 1988; 82Nu4248, Feb. 28, 1988; and 85Nu81487, Apr. 13, 1987; 1987; 200Nu48777, Feb. 28, 1984; 2008Nu18481, Apr. 18, 1987

(2) The court below's decision to the same purport as the above opinion is just, and there is no error in the misapprehension of legal principles as to refusal of refund of the national tax refund, the misapprehension of legal principles as to refusal of refund of the national tax refund, the exercise of right to explanation, the failure of hearing, and the purport of the precedent of party

2. We examine the second ground for appeal.

(1) The court below asserts that the decision of the court below is unlawful because it limits the right to choose any of the methods of administrative litigation, civil procedure, or other litigation in exercising the right to claim a trial guaranteed by the Constitution, which is not subject to appeal litigation against the rejection of refund in this case.

However, there is no need to say that the right to trial prescribed in the Constitution is not the purpose of guaranteeing that citizens can institute an administrative litigation on matters that are not the matters of administrative litigation.

In addition, if the tax authority considers that the decision of national tax refund or the decision of refusal to refund is subject to appeal litigation, it is not likely to choose the method of litigation, such as the theory of lawsuit, but rather, the taxpayer cannot choose the method of litigation other than the administrative litigation, and it is unfair that the right holder is considerably restricted.

In other words, deeming that a decision of national tax refund or a decision of refusal to refund is subject to appeal litigation is based on the premise that such decision is a disposition that specifically and directly affects the rights and obligations of the people, namely, a disposition that establishes the existence and scope of the taxpayer’s right to claim repayment, and thus, it cannot be exercised because the right to claim repayment has not been confirmed before the decision of national tax refund is rendered, and as long as the right to claim repayment is not exercised after the decision of national tax refund or the decision of refusal to refund has been rendered, it is concluded that no other right holder cannot be held as a right holder, unless it is excluded from the fairness of the decision of national tax refund or the decision of refusal to refund. In other words, even though it is evident that the application for taxation is benefiting from the tax amount paid according

(2) In addition, the lower court asserts that a lawsuit on a claim for refund is an illegal judgment that infringes on the right to a prompt trial guaranteed by the Constitution, in light of the fact that a civil lawsuit requires the third instance trial and the large amount of stamp costs, etc.

However, as long as the determination of the national tax refund or the decision of refusal to refund does not have an effect to determine the existence or scope of the claim for repayment, and therefore it is not a disposition that specifically and directly affects the rights and obligations of the taxpayer and thus cannot be subject to administrative litigation, even if the administrative litigation is a method of prompt remedy than civil litigation, it is not possible to allow administrative litigation against any matter other than administrative litigation.

3. Therefore, the appeal shall be dismissed by the assent of all Justices except for this case, and the costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.

4. Dissenting Opinion by Justice Lee Jae-sung is as follows.

Under Article 51 (1) of the Framework Act on National Taxes, the head of a tax office shall immediately determine the amount of erroneous payment, excess payment, or refund money to the taxpayer, and if there is any balance remaining after appropriating the refund money to the national tax, additional dues, and disposition fee for arrears under paragraph (2), it shall be refunded to the taxpayer within 30 days from the date of determination, under the conditions as

Therefore, if the above provisions of the tax office are faithfully observed, the taxpayer will be able to receive the national tax refund within 1,2 months even if he is seated.

However, it is deemed that there is a difference between the head of a tax office and the taxpayer about the occurrence and scope of the national tax refund, and that the taxpayer has the refund of the national tax. However, if the head of a tax office does not conclude the refund decision, it cannot be raised as a mistake in requesting the head of a tax office to make a refund decision in accordance with Article 51(1) of the National Tax Collection Act first and second to the head of a tax office.

Article 26 of the Constitution provides that all citizens shall file a petition with the State, and Article 4 of the Petition Act provides that the State shall have the obligation to review it. According to Article 4 of the Administrative Appeals Act, a petition may be filed to seek relief from damage and correction of misconduct by a public official, and Article 4 of the Administrative Appeals Act provides that an administrative agency may file a petition for an administrative appeal against a certain disposition against illegal or unfair rejection disposition. According to Article 4 of the Administrative Appeals Act, where an omission by an administrative agency is illegal, the head of the district tax office provides that a lawsuit seeking confirmation shall be a type of appeal litigation. In light of Article 4 of the Administrative Litigation Act, a request for a request by the head of the district tax office for a determination of refund under the Act is natural if a taxpayer fails to make a determination of refund in violation of Article 51 of the Framework Act on National Taxes, and if the head of the district tax office does not inform the taxpayer of the determination of refund on the ground that the taxpayer is not able to file an administrative appeal under Article 4 of the Administrative Appeals Act.

Therefore, it is too natural that the head of a tax office can file a claim for the revocation of the rejection disposition through administrative remedy procedures such as administrative appeal and administrative litigation even if the taxpayer actively refuses the application, not by omission without the decision of refund.

The majority opinion states that a decision to refuse a tax refund upon a taxpayer's request is not a disposition that specifically and directly affects the existence or scope of the right to claim a refund, and thus cannot be an object of appeal litigation, but it is unreasonable to deem that the decision to refuse a refund does not have a formative effect to cause a right to claim a refund, as stated in the majority opinion, even though the decision to refuse a refund by the head of a tax office does not have a right to claim a refund, or that there is no amount to be refunded at present. If the taxpayer's claim is legitimate, the decision to refuse a refund by the head of a tax office is evident that it causes damage because the taxpayer does not refund money in violation of the provisions of Article 51 of the Framework Act on National Taxes because he/she does not have a right to claim a refund against the taxpayer in violation of the provisions of Article 51 of the above Framework Act on National Taxes and the purpose of the administrative litigation system cannot be presented to

In order for the administrative litigation system to protect the people from illegal administrative activities, even in the case of this case, the taxpayer should be guaranteed a way to dispute the inappropriate decision of the head of the tax office to refuse the refund through the administrative litigation.

As stated in the majority opinion, the claim for refund of national taxes occurs when there is an erroneous payment or erroneous payment, or when a revocation or correction of a disposition is made, and naturally occurs when the requirements for refund as stipulated in each tax-related Act are met, and it does not occur only when a decision for refund of national taxes is made.

Therefore, the Majority Opinion deems that in the case of this case, the amount to be refunded would be a claim for return of the amount to be refunded in a civil lawsuit by unjust enrichment, and that it is unnecessary to allow a taxpayer to appeal by an appeal litigation, and that the decision of refund of national tax or the decision of refusal of refund would be subject to appeal litigation, and rather, if the taxpayer cannot choose other litigation methods than the administrative litigation and does not exclude the fairness of the decision after the decision of refund of national tax or the decision of refusal of refund was rendered, it would not be possible to make any other assertion, unless it excludes the fairness of the decision of refusal of refund of national tax, and even if it is evident that the tax authority received the tax amount from the tax authority due to the invalidation

However, it is not possible to say that the claim for refund does not occur before the refund decision is immediately made because the decision of national tax refund or the decision of refusal to refund is considered as an object of appeal litigation, and it is also unreasonable to block the way of appeal litigation for the reason that the claim for return of unjust enrichment by civil action can be filed.

In such a case, even if only the way to file a claim for return of unjust enrichment through civil procedure is the only solution, and even if an appeal litigation is permitted on the decision of refusal of refund, if a taxpayer is unable to receive a refund in reality, an appeal litigation is unnecessary. However, Article 51 of the Framework Act on National Taxes provides that where a taxpayer is overpaid or erroneously paid taxes to be refunded, the head of a tax office shall immediately make a decision of refund without filing a taxpayer's application and refund of overpaid or erroneously paid taxes to the taxpayer within 30 days without filing a request from the taxpayer. Thus, if an appeal litigation is permitted and the decision of refusal of refund by the head of a tax office is revoked in that lawsuit, the head of a tax office must make a decision of refund in accordance with the judgment and the decision of refusal of refund is expected to be bound within 30 days. Accordingly, if so, a taxpayer can receive relief of a right more convenient than a claim for return of unjust enrichment through civil procedure, and the damage to the public due to an erroneous administrative action can be compensated by administrative remedy procedure, which is a civil procedure.

In addition, even from the point of view of judicial policy, it can be said that the judgment of illegality of administrative action can be judged as much as possible by concentrating the administrative litigation procedure to the extent possible. Therefore, in the same case as in this case, if there is a thought that a taxpayer is able to dispute as an administrative litigation, it should be allowed to institute an administrative litigation, and even if it is clear that the act of the director of the tax office violates the provisions of Article 51 of the Framework Act on National Taxes, it is unreasonable

In such a case, it is reasonable to interpret that a taxpayer is dissatisfied with an appeal litigation or a taxpayer is entitled to select one of the two methods of filing a claim for return of unjust enrichment through civil procedure, or to exercise both at the same time will assist the remedy of the rights of the people, and that there is no reasonable ground to deny it, and that a decision of refund or a decision of refusal to refund is subject to appeal litigation, and there is no reason that the taxpayer does not have the right to claim refund before receiving the decision of refund.

The majority opinion argues that in a case where a taxpayer has filed an appeal suit against a decision of refusal of refund by the head of a tax office and has been ruled against, it would be difficult to say that a taxpayer would not claim a return of unjust enrichment in a civil lawsuit again if the judgment dismissing a request for cancellation of refund refusal in an administrative litigation becomes final and conclusive, even if it is difficult to say that it would result in a case where a taxpayer would not claim a return of unjust enrichment due to the validity of the judgment, which would result in a case where the taxpayer actually dismiss the taxpayer's claim for cancellation even though there is a claim for refund which was erroneous in the judgment of administrative litigation, which would result in an inevitable phenomenon that occurs as a result of the application of the principle of res judicata or res judicata effect against a decision of refusal of refund, and it cannot be said that

For the same reason, we cannot accept the reasoning and conclusion of the judgment of the majority opinion, and the precedents that the majority opinion should be abolished, and the precedents that the majority opinion maintains shall be discarded, and the ground for appeal of this case shall not be rejected, but the judgment of the court below shall be reversed and remanded.

Supreme Court Decision 201Hun-Ga111 delivered on April 1, 2011