Where the consolidation of litigation related to a claim for return of unjust enrichment, etc. is illegal in an appeal litigation;

Articles 38(1) and 10 of the Administrative Litigation Act provide that a lawsuit related to a claim for return of unjust enrichment may be joined in an appeal litigation, but if it fails to meet the requirements for appeal litigation, the consolidation of related claim lawsuits is illegal.

Article 10 of the Administrative Litigation Act (Transfer and Consolidation of Related Claims)

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On January 3, 2006, 2006, ○○ Tax Office’s attachment disposition against the Plaintiff’s bank account in the Plaintiff’s name on ○○○○ branch account is invalid. The Defendant Republic of Korea pays to the Plaintiff 21,274,678 won per annum from January 3, 2006 to the delivery date of a copy of the instant complaint, and 20% per annum from the next day to the day of complete payment.

The imposition of gift tax amounting to KRW 37,805,00 shall be revoked.

1. Details of the disposition;

A. On December 200, the director of the tax office of ○○ imposes value-added tax amounting to KRW 96,347,580 on ○○○○ in the middle of December 1999.

B. On January 1, 2001, the director of the tax office of defendant ○○ Tax office designated the plaintiff as a joint and several tax obligor of Kim○○○, and sent a notice of payment. Around June 17, 2005, the plaintiff made a seizure disposition on the deposit account of ○○○ Bank ○○ Branch ○○○ Branch ○○○ branch ○○ branch ○○ branch ○○. From among them on January 3, 2006, the amount of KRW 21,274,678 was replaced with the account number of KRW 00 from the account number of KRW 00 and the account number of KRW 00 from the account number of KRW 00 to the account number of KRW 00.

[Ground of recognition] Evidence Nos. 6, 7, 8-2, 9, 5-1 to 3, 11, and 11, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

(a) A captain;

(1) Plaintiff

Since Defendant ○○○ Tax Office did not notify the Plaintiff of the designation of joint and several taxpayers and the notice of tax payment, the said disposition is invalid, and the instant attachment disposition and substitute execution are also null and void. As such, Defendant ○○ Tax Office sought confirmation of invalidity of the instant attachment disposition against Defendant ○ Tax Office, while Defendant ○○ Tax Office seeking restitution of unjust enrichment or damages equivalent to KRW 21,274,678, which was executed as a substitute based on invalid attachment against Defendant Republic of

(2) The defendants' assertion

① The instant attachment disposition was cancelled by alternative execution on January 3, 2006, and thus, the claim for confirmation of invalidity against Defendant ○○ Tax Director is unlawful as it is against the non-existent disposition due to its extinguishment.

② Since a claim for payment of money against Defendant Republic of Korea is a separate civil suit, it is unlawful.

(b) Related statutes;

m. Administrative Litigation Act

Article 10 (Transfer and Consolidation of Related Claim Lawsuit)

(1) In cases where a lawsuit for revocation and a lawsuit falling under any of the following subparagraphs (hereinafter referred to as the "litigation for related claim") are pending in different courts respectively, the court in which the lawsuit for related claim is pending may, if deemed reasonable, transfer it to the court in which the lawsuit for revocation is pending, upon a request of the parties or ex officio:

1. Lawsuit claiming damages, restitution of unjust enrichment, restoration of original state, etc. related to the relevant disposition, etc.;

(2) A revocation suit may be instituted concurrently with the court in which a revocation suit against a person other than the defendant is pending, not later than the time the pleadings in the fact-finding proceedings are concluded.

Article 38 (Applicable Provisions)

(1) The provisions of Articles 9, 10, 13 through 17, 19, 22 through 26, 29 through 31, and 33 shall apply mutatis mutandis to a lawsuit seeking confirmation of nullity, etc.

C. Determination

(1) Determination on the claim for nullification confirmation

If a seizure disposition is cancelled, its effect shall be invalidated, so there is no legal interest to confirm the invalidity of the disposition, barring any special circumstance to deem that there is a violation of any legal interest due to the remaining effect of the disposition. In addition, after a seizure disposition is appropriated for the amount of tax imposed due to the execution of the seizure disposition, the claim for return of unjust enrichment for the amount appropriated on the ground that the seizure disposition is null and void is a separate issue, and there is no interest to confirm the invalidity of the seizure disposition as an independent lawsuit (see, e.g., Supreme Court en banc Decision 80Nu476, Mar. 23, 19

According to the statement Nos. 9-1 and 2 of the evidence Nos. 9-2, the attachment disposition of this case can be acknowledged as cancelled on January 3, 2006. Thus, this part of the claim is unlawful as there is no benefit of lawsuit.

(2) Judgment on the claim for payment of money

To seek the return of the tax already paid on the premise that the tax imposition disposition, etc. is void as a matter of course, or to seek compensation for damages on the premise that the said disposition is unlawful (see, e.g., Supreme Court Decisions 94Da5019, Apr. 28, 1995; 70Da2955, Apr. 6, 1971);

exceptionally, Articles 38(1) and 10 of the Administrative Litigation Act stipulate that a lawsuit may be filed by combining litigation related to a lawsuit seeking nullification with a related claim, such as compensation for damages and return of unjust enrichment relating to the pertinent disposition, etc. However, the consolidation of related claim lawsuits requires that the original appeal litigation be lawful. Thus, if an appeal litigation is dismissed in an unlawful manner due to the illegality of the original appeal litigation, the relevant joined claim shall be dismissed as unlawful (see, e.g., Supreme Court Decision 2000Du697, Nov. 27, 2001).

In the instant case where the Plaintiff asserted that the attachment disposition of this case is null and void and claimed for payment of KRW 21,274,678, which was executed as a substitute therefor, as unjust enrichment or damages, and where the part of the claim for nullification of the attachment disposition is unlawful as seen above, this part of the claim is unlawful due to the lack of litigation requirements

3. Conclusion

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