Whether it is possible to file a lawsuit for retrial after a final determination

A lawsuit by retrial may not be brought when the parties have asserted the grounds by an appeal or do not know thereof with the knowledge thereof.

Article 8 (Application of the Administrative Litigation Act)

1. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff (appointed party).

Purport, purport of appeal and request for retrial

1. Purport of claim

On July 30, 2002, the defendant (the defendant, hereinafter referred to as "the defendant") designated the plaintiff (appointed party, the plaintiff, hereinafter referred to as "the plaintiff"), the designated party (the plaintiff, hereinafter referred to as "the plaintiff"), 2, 00, and 3 ○○ as the second taxpayer of the M General Commercial Co., Ltd. (hereinafter referred to as "non-party company") and imposed the value-added tax of 103,95, 490 won for the second period of 1997, and the first period of 1998, value-added tax of 40,432,540 won for value-added tax for the first period of 198, on August 12, 2002, the additional dues and aggravated additional dues for value-added tax for the second period of 197, 50,125, 610 won, and 198,4860 won for each demand for payment of value-added tax for the second period of 198.

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff in the judgment of the court of first instance shall be revoked, and the defendant shall designate the plaintiff as the second taxpayer of the non-party company on July 30, 2002, each disposition imposing the value-added tax of 103,995,490 won for the second term of 197, value-added tax of 1998, value-added tax of 10,432,540 won for the first term of 1998, and the additional and increased additional taxes for the second term of 1997 for the plaintiff on August 12, 2002, the additional and increased additional taxes for value-added tax for the second term of 197 for the plaintiff shall be revoked.

: Cancellation of the part of the judgment of the first instance, and the plaintiff's claim corresponding to the above cancellation shall be dismissed.

3. Purport of request for retrial;

The part against the plaintiff in the judgment subject to review shall be revoked. On July 30, 2002, the defendant designated the plaintiff as the second taxpayer of the non-party company for the second period of 197 and imposed the value-added tax of 10,432,540 won for the first period of 1998, and the additional dues and increased additional dues for the second period of 1997 as to value-added tax for the plaintiff on August 12, 2002, the additional dues and increased additional dues for the second period of 1997 as to value-added tax for the plaintiff on August 12, 2002 and the first period of value-added tax of 19,48,460 won for each payment demand disposition of 19,48,460 won for value-added tax for the first period of 197 shall be revoked.

1. Determination of the original judgment

On February 3, 2001, the Plaintiff’s 201.2. The Plaintiff’s 2.3rd of the Seoul Administrative Court’s 2001Gu3869, and the Defendant’s 156,848,810 won of the value-added tax for the second period of October 27, 1997, which was declared by the Plaintiff and the 2.2nd of the 196th of the 2nd of the 2nd of the 2nd of the 196th of the 2nd of the 196th of the 2nd of the 196th of the 2nd of the 196th of the 2nd of the 2nd of the 196th of the 2nd of the 196th of the 1st of the 2nd of the 196th of the 1st of the 2nd of the 196th of the 1st of the 2nd of the 2nd of the 19th of the 19th of the 2nd of the 2nd of the 2nd of the 2nd of the 3th of the 2nd.

2. Whether the litigation for retrial of this case is legitimate

A. The plaintiff's assertion

The Plaintiff asserts that there exists a ground for retrial under Article 451(1)9 of the Civil Procedure Act in the instant judgment subject to a retrial, since it omitted a judgment on important matters that may affect the judgment as follows.

① The Plaintiff did not take part in the incorporation of the non-party company, and did not receive shares as a shareholder.

② On October 27, 199, the first disposition taken by the Defendant against the Plaintiff and the appointed parties was null and void due to procedural defects, but all of the hearings and judgments were omitted, and even though the foregoing defects cannot be cured in principle, the Defendant again issued a disposition to the same effect as the Plaintiff and the appointed parties on July 30, 2002.

③ On December 196, 1996, the Plaintiff transferred the non-party company to ○○○, and filed a claim for share transfer against the Plaintiff and the designated parties prior to the date of establishment of the instant tax liability.

④ On July 28, 2006, the Constitutional Court declared that Article 22 subparagraph 2 (3) of the former Local Tax Act concerning "shareholders" was unconstitutional.

B. Determination

Since the parties cannot file a lawsuit for retrial unless they have asserted or known the grounds for appeal (Article 8(2) of the Administrative Litigation Act, the proviso of Article 451(1) of the Civil Procedure Act), the above (Article 451(1) of the Civil Procedure Act), which the plaintiff cited as the omission of judgment, (1), (2), (3) of the above Supreme Court Decision 2006Du12203 Decided November 23, 2006, it is apparent in the records that the judgment had already been made, and (4) of the above Article is amended by Act No. 4611 of Dec. 27, 1993, and Article 22 subparag. 2(3) of the former Local Tax Act (amended by Act No. 6060 of Dec. 28, 199) is inconsistent with Article 22 subparag. 2(3) of the former Framework Act on National Taxes (amended by Act No. 70608 of Dec. 30, 2003).

3. Conclusion

Therefore, since the lawsuit of this case by the plaintiff and the designated parties is unlawful, it is decided as per Disposition by the assent of all participating Justices.