Chuncheon District Court Decision 2008Guhap182 ( November 20, 2009)

Early High Court Decision 2007Du1715 ( December 05, 2007)

Any assertion that does not constitute a legitimate ground for retrial, which is unlawful and dismissed.

The plaintiff asserted the same reasons as the reasons stated in the petition for retrial in the petition for final appeal against the judgment subject to a retrial as the grounds for final appeal. Even if not, the omission in the judgment subject to a retrial does not constitute a legitimate ground for final appeal. Thus, the lawsuit for a retrial is unlawful

2010Nu260 Revocation of Disposition of Imposition of Value-Added Tax

Dogwon

○ Head of tax office

Chuncheon District Court Decision 2008Guhap182 Decided November 20, 2009

May 18, 2011

June 8, 2011

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Purport, purport of appeal and request for retrial

The judgment subject to a retrial and the judgment of the first instance shall be revoked. Each disposition of the Defendant (limited to the Defendant, hereinafter referred to as the “Defendant”) imposed on May 9, 2007 on the Plaintiff (only the Plaintiff, hereinafter referred to as the “Plaintiff”) the value-added tax of 650,152 won for the first term in 2005, value-added tax of 921,930 won for the second term in 2005, value-added tax of 915,543 won for the first term in 2006, value-added tax of 915,543 won for the second term in 206, and 516,235

1. Progress of this case

The following facts are significant in this court:

The Plaintiff filed the instant lawsuit against the Defendant prior to the review that sought revocation of the imposition disposition of value-added tax stated in the purport of the claim by Gangnam Branch District Court 2008Guhap182. On November 20, 2009, the court of first instance rendered a judgment to the effect that the Defendant’s claim for revocation of the tax amount exceeding KRW 569,232 of the value-added tax for the first term portion in 2005 650,152, and value-added tax for the second term portion in 2005 921,930,000,000 won for the second term portion in 205 87,930,000 won on the ground that the correction disposition was unlawful, and that the remainder of the claim is lawful.

The Plaintiff appealed against this Court 2009Nu39263, but this Court rendered a judgment subject to a retrial that dismissed an appeal on June 17, 2010.

On July 5, 2010, the Plaintiff submitted a challenge to this court as the title "the petition for a retrial", which is within the lawful period of appeal. The content of the challenge includes the Plaintiff’s assertion that the following grounds exist. This court confirmed the purport of the Plaintiff’s appeal against the judgment subject to a retrial, and sent the written appeal to the Supreme Court by deeming the Plaintiff as the petition for a final appeal. On December 9, 2010, the Supreme Court rendered a judgment dismissing the Plaintiff’s appeal to the Supreme Court, which became final and conclusive on which the judgment subject to a retrial became final and conclusive (excluding the case where this court sent the written appeal to the Supreme Court on July 5, 2010, deeming that there is room to regard it as the petition for a retrial as the petition for a final appeal, and this court proceeded with the new appeal as the court’s 2010Nu1544, and was merely a mere objection to the final and conclusive judgment on May 12, 2011.)

2. Existence of grounds for retrial

A. The plaintiff's assertion

Although the Plaintiff filed a revised return or an application for correction of value-added tax, the Defendant refused the disposition accordingly, and thus the Plaintiff filed an appeal suit (or an appeal suit for confirmation of illegality of omission) with the purport of seeking revocation of the disposition of rejection. In addition, the Defendant issued a revised disposition of value-added tax, thereby

The judgment subject to a retrial omitted the above determination on the Plaintiff’s assertion, which constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act, and thus, the judgment subject to a retrial ought to be revoked.

B. Determination

According to the proviso of Article 451(1) of the Civil Procedure Act, the grounds for not having asserted by or not having asserted by a party through an appeal cannot again be brought a lawsuit for retrial on the grounds of this, and thus, a lawsuit for retrial cannot be brought on the grounds for which a judgment by the court of final appeal was rendered on the grounds for which a judgment by the court of final appeal was alleged in the grounds for appeal. In addition, if a judgment was omitted in the judgment subject to final appeal, it can be known if the original copy of the judgment was served, and barring any special circumstance, barring any special circumstance, it can be known that there was omission in judgment at the time of being served with the original copy of the judgment, and a lawsuit for retrial may not be brought on the grounds of this. Ultimately, barring any special circumstance, omission in judgment may not be a legitimate ground for retrial as to the judgment subject to final appeal, regardless of whether it was alleged in the grounds for final appeal (see, e.g., Supreme Court Decisions 2005Da58236, Jan. 12, 200

The plaintiff asserted the same reasons as the reasons stated in the petition of retrial in the petition of this case in the petition of appeal against the judgment subject to a retrial, and even if not, it is not legitimate that the judgment was omitted in light of the above legal principles.

The litigation of this case is unlawful as it asserts that it does not constitute legitimate grounds for retrial.

3. Conclusion

The litigation of this case shall be dismissed.