early 2005west0932 ( November 29, 2005)

After a final judgment on the merits of the Gu lawsuit has been rendered, the alteration in exchange for the report with the Gu lawsuit.

An exchange change in a lawsuit is combined with the additional consolidation of the application form and the withdrawal of the application form. After a final judgment on the merits of the lawsuit has been rendered, the withdrawal of the lawsuit shall become effective if the previous lawsuit is changed to a new lawsuit. A person who withdraws the lawsuit after the final judgment on the merits has been rendered shall not institute the same lawsuit.

The contents of the decision shall be the same as attached.

1. The instant lawsuit shall be dismissed.

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

On July 1, 2004, the Defendant confirmed that the imposition of global income tax of KRW 395,001.740 on the Plaintiff for the year 2002 is null and void.

1. Basic facts

A. On July 1, 2004, the Defendant imposed global income tax of 395,001,740 won on the Plaintiff on July 1, 2004 (hereinafter “instant disposition”) by deeming that the Plaintiff lent the amount between thisA and KimB from January 22, 2002 to December 30, 202 and received KRW 875,467,280 as interest income.

B. On February 6, 2006, the Plaintiff filed a lawsuit against the Defendant for the revocation of the instant disposition under this Court 2006Guhap4554, but this court rendered a judgment dismissing the Plaintiff’s claim on October 25, 2006 on the ground that “the Plaintiff loaned the money to EA, etc. from January 22, 2002 to November 1, 2002, and received KRW 856,752,864 as interest, and the Plaintiff received part of interest on the money loaned to EA, etc. from November 4, 2002 to November 11, 202, and KRW 9,180,000 from December 4, 202 to December 30, 2002.”

C. On November 14, 2006, the Plaintiff appealed to the above judgment. During the appellate trial (Seoul High Court 2006Nu2824), the Plaintiff exchanged the lawsuit against the Republic of Korea to change the lawsuit against the Defendant to a lawsuit against the Republic of Korea, and to seek the revocation of the instant disposition and the revocation of the attachment disposition, and the implementation of the cancellation registration procedure.

D. On August 28, 2007, the above appellate court rendered a judgment dismissing the other party to the disposition on the ground that the part seeking the revocation of the disposition and the seizure disposition of this case among the plaintiff's lawsuits against the Republic of Korea is unlawful by designating the other party to the disposition, and the part seeking the implementation of the procedure for registration of cancellation was dismissed. The above judgment became final and conclusive on September 28, 2007 because the plaintiff did not appeal against the above judgment.

[Reasons for Recognition] The entry of evidence Nos. 1 and 2 and the purport of the whole pleading

2. As to the plaintiff's argument regarding "a complaint" in the plaintiff's litigation procedure

The plaintiff submitted a written appeal to the effect that: (a) the defendant's decision to permit the designation of the litigation performer as of December 9, 2009; (b) the defendant's decision to permit the designation of the litigation performer as of January 14, 2010; and (c) the defendant's decision to seek revocation of the defendant's decision to maintain the validity of the response as of December 16, 2009; (b) the plaintiff's argument is sought a separate judgment. However, the above matters of the plaintiff's argument are not those of the court's permission decision; (c) the court did not make any decision on the permission decision or the validity thereof; and (d) it may not be subject to appeal. Accordingly, the court does not need to give a separate judgment or the reason for explanation; and (d) there is no obligation or explanation to the plaintiff to help the plaintiff

3. Determination on the lawfulness of the instant lawsuit

A. The parties' assertion

In managing the Plaintiff’s passbook from January 21, 2002, the Plaintiff embezzled KRW 1,052,43,422 from the Plaintiff’s passbook during the period from November 4, 2002 to November 11, 2002 when KimB withdrawn the money from the Plaintiff’s passbook and deposited the principal and interest in the Plaintiff’s passbook. As such, the Plaintiff did not have any interest income accrued in the year 2002, the instant disposition that the Plaintiff deemed to have received interest income of KRW 875,467,280 in the year 202 is unlawful, and its defect is so serious and obvious that it is invalid, the Defendant asserts that the instant lawsuit is unlawful since the Defendant had a final and conclusive judgment in the above appellate court on the same lawsuit as the instant lawsuit.

B. The instant lawsuit and the final judgment of the said appellate court are clear that the Defendant was not a uniform lawsuit, and therefore, the Defendant’s defense of safety is without merit.

C. We examine ex officio the legality of the instant lawsuit.

(1) An exchange change in a lawsuit is combined with the additional consolidation of the application form and the withdrawal of the application form. After the final judgment as to the merits of the lawsuit is rendered, the withdrawal of the lawsuit form becomes effective if the previous lawsuit is changed into a new lawsuit (see, e.g., Supreme Court Decision 87Meu1405, Nov. 10, 1987). Since a person who withdraws the lawsuit after the final judgment was rendered as to the merits of the lawsuit does not institute the same lawsuit (Article 8(2) of the Administrative Litigation Act; Article 267(2) of the Civil Procedure Act). As such, a person who changes the previous lawsuit into an exchange of the previous lawsuit and the new lawsuit after the final judgment as to the merits of the lawsuit is rendered,

(2) Article 11267(2) of the Civil Procedure Act provides that the State's efforts up to that point by discretionary action against those who return to vain and vain. Thus, in a case where the subject matter of a lawsuit in the previous suit is the preemptive legal relationship or premise of the subject matter of a lawsuit, or where the subject matter of a lawsuit in the previous suit is the subject matter of a lawsuit, the subject matter of a lawsuit is different from that in the previous suit, the prior suit and the subsequent suit constitute "the same action" as provided in the above provision, which is not possible for the plaintiff to seek a judgment again as to the existence of rights and legal relations or the illegality of disposition, which were the subject matter of the previous suit (see Supreme Court Decisions 4290Da784, Mar. 6, 1958; 8Da18023, Oct. 10, 1989).

(3) On the other hand, a lawsuit seeking the invalidation of a disposition is a general subject matter of lawsuit. In general, a lawsuit seeking the invalidation of a disposition is a separate lawsuit on the grounds that the major and obvious illegality of the disposition is the subject matter of lawsuit, but it is not classified by the degree of defects in the administrative disposition, etc., and both lawsuits are illegal defects in the administrative disposition, etc. In fact, where the legality of the disposition is recognized in a lawsuit seeking the invalidation of the disposition and the claim is rejected, the claim seeking the invalidation of the disposition is not justified as a matter of course. In addition, the claim for revocation of the disposition includes the purport of seeking the revocation of the meaning of the declaration of invalidation as well as the strict meaning of the declaration of invalidation, and two lawsuits are in a mutual tolerance relationship.

(4) As to the instant case, the Plaintiff filed a claim for the cancellation of the instant disposition against the Defendant in a prior suit, but appealed after being sentenced to dismissal judgment, which is the final judgment at the first instance court on the merits, and the appellate court changed the instant disposition against the Republic of Korea, each claim for cancellation of the attachment disposition, and the claim for cancellation of the attachment registration procedure. As such, the Plaintiff cannot file a subsequent suit identical to the claim for cancellation of the instant disposition against the Defendant (hereinafter referred to as the “instant lawsuit”). In light of the above legal principles, the subject matter of the instant lawsuit is related to the instant lawsuit, and therefore, the instant lawsuit and the instant lawsuit are "the same as the instant lawsuit stipulated in Article 267 (2) of the Civil Procedure Act."

Therefore, the instant lawsuit is unlawful.

3. Conclusion

Thus, the lawsuit of this case is dismissed.