Plaintiff 1 and four others (Attorney Park Byung-chul, Counsel for the plaintiff-appellant)

Korea

November 24, 2005

Seoul Central District Court Decision 2004Da236327 Delivered on April 27, 2005

1. All appeals filed by the plaintiffs are dismissed.

2. The appeal costs are assessed against the plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiffs 73,152,410 won with 5% interest per annum from May 17, 200 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the following facts: Gap evidence 1-1-2, Gap evidence 3-1-4, Eul evidence 4, fact inquiry results and the whole purport of arguments against Sungbuk Registry of the court of first instance.

A. On July 4, 1977, the deceased non-party filed a registration of preservation of ownership as the number of 28462 on the date of receipt of the Seoul District Court's Seongbuk-dong (number omitted) 1, 2nd floor of the 1, 8th floor of the 1, 2nd floor of the 2nd floor of the Seongbuk-gu, Seongbuk-gu, Seoul (number omitted), the apartment building of the 2nd floor of the 59.93 square meters of the 2nd floor, and the 19.97 square meters of the underground room of the 19.97 square meters of the 1,547th unit of the 1,547th unit of the 1,547 unit of the building site of the said apartment house (hereinafter "the site of this case").

B. After that, on May 14, 1990, the deceased non-party donated 208.26 shares of the above land to the plaintiff 2, who was his own son on May 14, 1990, separately from the above apartment house, and made a registration of partial transfer of the ownership in the above land under the name of the plaintiff 2 as of May 18, 1990 by the receipt of No. 19970 on May 18, 190, but the above registration of partial transfer of ownership remains on the register of the land in this case.

C. On May 17, 200, the head of Seongbuk-do Tax Office, under the Defendant’s jurisdiction, paid the gift tax amounting to KRW 51,533,160, and the education tax amounting to KRW 8,588,860, and the additional tax amounting to KRW 13,030,390, in total, KRW 73,152,410.

D. As the deceased Non-Party died on August 10, 2004 while the lawsuit of this case is pending, the plaintiffs, who were their successors, taken over the lawsuit of this case.

2. Determination:

A. The plaintiffs' assertion

The plaintiffs filed a claim against the defendant for the return of unjust enrichment by asserting that the gift tax, etc. paid by the deceased non-party and the plaintiff 2 on the ground that only the above 208.26 shares in the land of this case is null and void in violation of Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings and Article 135-2(1) of the Registration of Real Estate Act. Therefore, the above disposition of gift tax, etc. by the head of Sungbuk Tax Office affiliated with the defendant is null and void as a matter of course. Thus, since the gift tax, etc. paid by the deceased non-party and the plaintiff 2 on the ground of the above disposition is no legal ground and is all unlawful.

B. Determination

In order for a taxation disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and its defect must be objectively and objectively in violation of Acts and subordinate statutes, and in determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the laws and regulations, which form the basis for the pertinent taxation, should be examined in a teleological context as well as rational consideration as to the specificity of the specific case itself. However, in a case where there are objective circumstances that make it clear that a person who does not have any legal relations or factual relations subject to taxation is subject to taxation, if it is possible to accurately investigate the factual relations with respect to any legal relations or factual relations which are not subject to taxation, it cannot be deemed that the defect is apparent even if it is serious, and thus, it cannot be deemed that the taxation disposition that misleads the fact of taxation is null and void as a matter of course (see, e.g., Supreme Court Decision 200Da24986, Jul. 10, 201).

The main text of Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings provides that a sectional owner shall not dispose of the right to use a site separately from his section of exclusive ownership. Article 135-2(1) of the Registration of Real Estate Act provides that where a right to a site has been registered, the right to a site shall not be registered for transfer of ownership in the register of the land. The fact that on May 14, 1990, the deceased non-party donated the right to a site to Plaintiff 2 separate from the apartment house in this case and donated the right to a site in this case and completed the registration for partial transfer of ownership is as seen earlier. Thus, the above donation and the above partial transfer of ownership are null and void in violation of the above legal provisions, and thus, there is any illegality in the imposition of the gift tax, etc. by the head of Seongbuk-do Tax Office on the ground of the above donation.

However, in light of the above facts, it is clear that Plaintiff 2 received compensation from the Seoul Regional Land Expropriation Committee to the part of the above site on May 14, 1990 as the owner of the above share and the fact that Plaintiff 2 received the above part of the share on the register of the site in this case after the registration of partial transfer of ownership was made. The latter fact that the head of Sungbuk District Tax Office imposed gift tax, etc. on the deceased Non-Party and Plaintiff 2 paid KRW 73,152,410 as gift tax, etc. on May 17, 200. The above fact that the deceased Non-Party and Plaintiff 2 paid KRW 73,152,410 as gift tax, etc. on May 17, 200. According to the evidence evidence No. 5 and evidence No. 6, it is evident that the above facts can not be seen that the above facts were subject to imposition of gift tax. Thus, in light of the aforementioned facts and circumstances, it can be found that the above facts can not be found that it is subject to taxation.

Therefore, the plaintiffs' claims of this case based on the premise that the above taxation is void as a matter of course are without merit, and all of the claims of this case are without merit.

3. Conclusion

Therefore, each of the plaintiffs' claims in this case is dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance is just in its conclusion, and all of the plaintiffs' appeals are dismissed, and it is so decided as per Disposition.

Judges Kim Yong-Hun (Presiding Judge)