Whether the Plaintiff is a actual business operator of the instant workplace

The lawsuit of this case where the actual business operator seeks confirmation of the plaintiff does not correspond to not only to civil-public litigation, agency litigation, or appeal litigation as stipulated by the Administrative Litigation Act, but also to the legal relationship based on the administrative agency's disposition, etc. during the party litigation.

Article 14 of the Framework Act on National Taxes

Incheon District Court 2016Guhap36 Verification of Status of Business Operator

AA

BB Director of the Tax Office

May 13, 2016

3, 2016.6

1. The instant lawsuit shall be dismissed.

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

1. The plaintiff's assertion

In early 2011, the Plaintiff completed the instant business registration under the name of “DD”. Since DD’s actual business operator is the Plaintiff, it should be imposed on the Plaintiff for taxation related to DD, even though it has been imposed tax, the Plaintiff sought a judgment that the Defendant and the Plaintiff confirm that the instant business operator is the Plaintiff with respect to the instant business registration so that the said taxation may be conducted to the Plaintiff, other thanCC.

2. Whether the lawsuit of this case is lawful

A. 1) The purpose of business registration under the Value-Added Tax Act is to enable the tax authority to identify the taxpayer of the value-added tax and secure the taxation data. This is to establish a business registration application by submitting a business registration application prescribed to the head of the competent tax office as a simple business report, and the issuance of a business registration certificate is merely an act of issuing a certificate proving such registration (see, e.g., Supreme Court Decision 2008Du2200, Jan. 27, 201), business registration, cancellation of registration, correction of business registration, etc., related to the pertinent business, it cannot be said that there is a legal relationship or a change in public law.

2) 행정소송법은 ① 행정소송의 종류로, ㉠ 행정청의 처분 및 재결(이하 '처분 등'이라고 한다)이나 부작위에 대하여 제기하는 '항고소송', ㉡ 행정청의 처분 등을 원인으로 하는 법률관계에 관한 소송과 그 밖에 공법상의 법률관계에 관한 소송으로서 그 법률관계의 한쪽 당사자를 피고로 하는 '당사자소송', ㉢ 국가 또는 공공단체의 기관이 법률에 위반되는 행위를 한 때 그 시정을 구하기 위하여 제기하는 '민중소송', ㉣ 국가 또는 공공단체의 기관 상호간에 있어서의 권한의 존부 또는 그 행사에 관한 다툼이 있을 때 제기하는 '기관소송'만을 규정하고 있고(제3조), ② 나아가 항고소송을 ㉠ 행정청의 처분 등을 취소 또는 변경하는 '취소소송', ㉡ 행정청의 처분 등의 효력 유무 또는존재여부를 확인하는 '무효 등 확인소송', ㉢ 당사자의 신청에 대하여 행정청이 아무런응답을 하지 아니하고 있는 행정청의 부작위가 위법하다는 것을 확인하는 '부작위위법확인소송'으로 구분하고 있다.

3) The instant lawsuit seeking the confirmation of the actual business operator with respect to the instant business registration is the Plaintiff does not fall under the “Formal Party Lawsuit,” which is a litigation concerning legal relations based on the disposition, etc. of an administrative agency, as well as civil, agency litigation or appeal litigation litigation as prescribed by the Administrative Litigation Act.

In addition, as a lawsuit concerning legal relations under public law, the "actual party lawsuit" refers to a lawsuit in which the rights or legal relations of the parties themselves are the subject matter of a lawsuit, and in an administrative litigation, the lawsuit for confirmation is for the purpose of confirming the existence of rights or legal relations, so only the specific rights or legal relations are the subject matter of a lawsuit for confirmation (see Supreme Court Decision 91Nu1974, Dec. 24, 1991). It cannot be said that the rights or legal relations under public law between the plaintiff and the defendant are established due to the registration of the business in the name ofCC or the taxation against the defendant'sCC by the registration of the business in this case made in the name ofCC or the taxation against the defendant'sCC. The seeking the actual confirmation of business registration is merely seeking the confirmation of factual relations. Thus, the lawsuit in this case cannot be deemed as a substantial party lawsuit

In addition, a party lawsuit disputing the legal relationship under public law has only the standing to be the defendant (see Supreme Court Decision 2001Du7794, Dec. 11, 2001). Thus, it cannot be said that the defendant of this case is not a state or a local government, but a tax authority and is merely an administrative agency and cannot be the subject of rights under public law, pursuant to Articles 3 subparag. 2 and 39 of the Administrative Litigation Act.

B. Furthermore, even if the instant lawsuit is deemed a civil lawsuit, it is merely an institution, not a State or a local government, and thus, the Defendant is incapable of having the legal capacity under the Civil Act.

In addition, in a lawsuit for confirmation of a civil petitioner, there is no interest in confirmation (see, e.g., Supreme Court Decision 92Da23872, Dec. 8, 1992). The lawsuit for confirmation is recognized as the most effective and appropriate means to determine the legal status of the plaintiff when the legal status of the plaintiff is unstable and dangerous (see, e.g., Supreme Court Decision 2003Da55059, Dec. 22, 2005). The lawsuit in this case is merely seeking confirmation of factual relations, and the plaintiff filed the lawsuit in this case seeking confirmation of the plaintiff in order to deny the validity of the tax disposition made by the defendant againstCC, the actual owner of the business registration in this case. However, although the defendant filed the lawsuit in this case seeking confirmation as the plaintiff, the most effective and appropriate means to eliminate the legal status and risk of taxation by the tax disposition against the nominal owner under the business registration in this case, not the business operator in this case seeking confirmation as the plaintiff, and there is no interest in revocation of the tax disposition in this case itself.

C. Therefore, the instant lawsuit is deemed to be unlawful, in some cases.

3. Conclusion

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