Korea Railroad Corporation (Law Firm LLC et al., Counsel for the defendant-appellant)

The head of Yongsan-gu Seoul Metropolitan Government (Law Firm Losch Rexroth, Attorneys Lee Jong-dae et al., Counsel for the defendant-appellant)

November 16, 2017

Seoul Administrative Court Decision 2017Guhap53873 decided August 25, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

A. On May 1, 2014, the Defendant’s rejection of a claim for correction against the Plaintiff for the total amount of KRW 38,302,968,60 shall be revoked.

B. On December 31, 2014, the Defendant’s rejection of a claim for correction against the Plaintiff for the total amount of KRW 38,302,968,60 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is the same as that of the court of first instance, except for adding the following contents, and thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The following shall be added in notes to the “Reference” of Part 16 of the Decision 15 of the first instance court.

2) The defendant asserts that the above Supreme Court precedents (Supreme Court Decisions 85Nu1008 delivered on March 25, 1986 and Supreme Court Decisions 93Nu11319 delivered on September 14, 1993; hereinafter "Supreme Court precedents of this case") are inconsistent with the Supreme Court precedents pertaining to the nature of acquisition tax, and they are in violation of the principle of no taxation without law in that they recognize the grounds for non-taxation without any express provision.

First of all, the Supreme Court's decision on whether the acquisition tax violates the nature of acquisition tax, and the Supreme Court's decision on the nature of acquisition tax is considered as "one kind of distribution tax imposed by recognizing the ability to pay taxes by gathering the fact that the acquisition tax is an act of acquiring goods and recognizing the ability to pay taxes" (see, e.g., Supreme Court Decisions 98Da12171, Sept. 3, 1999; 98Du1428, Dec. 8, 1998; 98Du1428, Dec. 28, 1998). In the case of restitution following the cancellation of sales contract, it is difficult to view it as a new acquisition or distribution arising from a separate cause of acquisition separate from the previous ownership. Thus, the Supreme Court's decision

Furthermore, as to whether the Supreme Court precedents of this case violate the principle of no taxation without law, the ownership of each of the instant land to the Plaintiff is premised on the fact that it does not constitute “acquisition”, which is subject to acquisition tax, and thus, cannot be seen as having acknowledged the grounds for non-taxation without express provision.

Therefore, each of the above arguments by the defendant cannot be accepted.

○ Part 17 of the 15th judgment of the first instance court is "Maho," and the following shall be added as separate notes:

3) The defendant asserts that the Supreme Court precedents of this case concerning the cancellation of agreement, and thus, they cannot be applied to this case, not the cancellation of agreement, but the cancellation of agreement or the termination of court.

However, in light of the fact that the rescission of an agreement retroactively terminates the existing contract as a new contract, the statutory rescission or the rescission of an agreement is expected to exercise the right of rescission due to a specific cause from the time of the conclusion of the agreement, it appears that it would have less impact on the stability of tax law relations, and the substance thereof would be considered as re-sale. Moreover, there is no difference in the aspect that the previous legal relationship is retroactively extinguished. Therefore, even in the instant case premised on the existence of the right of rescission of agreement, there is no particular problem in applying the legal principles of the Supreme Court precedents in this case. Accordingly, the Defendant’s assertion on a different premise is without merit).

2. Conclusion

If so, the plaintiff's claim should be accepted for the reasons, and the judgment of the court of first instance is just for the conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Justices Cho Jong-dae (Presiding Justice)