Supreme Court-2015-Du-5241 ( October 28, 2016)

Since the part subject to adjudication was corrected ex officio, this part of the plaintiff's lawsuit is dismissed.

Since the defendant, after the remanding of the case, corrected ex officio the part limited to the trial of the court, the corresponding part of the lawsuit in this case is to seek the revocation of the disposition that has not been extinguished, and thus, it is unlawful as there

2016Nu33942 Revocation of Disposition of Gift Tax Imposition

IsaA

O Head of tax office

Seoul Administrative Court Decision 2013Guhap53950 decided November 7, 2014

100.00.00

Seoul High Court Decision 2014Nu71698 Decided August 18, 2015

Supreme Court Decision 2015Du52241 Decided January 28, 2016

August 25, 2016

September 29, 2016

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's lawsuit corresponding to the revoked part shall be dismissed;

2. The defendant bears the total costs of the lawsuit after the filing of the appeal.

1. Purport of claim

The Defendant’s disposition imposing gift tax of KRW 000 on the Plaintiff on February 8, 2012 is revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revoked part

The dismissal is dismissed.

1. Scope of adjudication of this court;

The Plaintiff filed a lawsuit seeking revocation of the disposition imposing gift tax stated in the purport of the claim. The first instance court dismissed the part of KRW 000,000, which was corrected ex officio by the Defendant prior to the instant lawsuit, and dismissed the part of KRW 000. The Defendant appealed only against this, and the judgment dismissing the Plaintiff’s claim (excluding the part dismissed in the first instance trial and the part dismissed in the first instance trial). The Plaintiff appealed only against this, and only the Plaintiff filed a final appeal (excluding the part dismissed in the first instance trial, with the exception of KRW 000,000). Accordingly, the Supreme Court reversed the part against the Plaintiff in the judgment prior to the remand, and remanded this part to the first instance trial, and dismissed the remainder of the Plaintiff’s appeal (limited to the part of KRW 000,000, which was rejected by the Plaintiff but did not appeal in the first instance trial). Accordingly, the subject of the judgment of this court is limited to the part of KRW 00,000, which was lost by the Plaintiff before the remand.

2. Whether the lawsuit of this case is lawful

Judgment ex officio is made.

In full view of the purport of the argument in Eul evidence No. 37, the defendant, on April 8, 2016, after the remanding of this case, corrected the amount of KRW 000,000, which is the part exceeding KRW 000,000 (which is the part against the defendant in the first instance court), among the disposition imposing gift tax against the plaintiff. Accordingly, the part of KRW 000, among the disposition imposing gift tax against the plaintiff, does not exist any longer because it loses its effect. Accordingly, the part of the lawsuit in this case, which is KRW 00, among the disposition imposing gift tax against the plaintiff, is extinguished and seeks for the revocation of the disposition that has not been extinguished, and thus becomes illegal as there is no interest in the lawsuit (see Supreme Court Decision 2012Du18202, Dec. 13, 2012).

3. Conclusion

Therefore, the part of the lawsuit in this case (the part against the defendant) shall be dismissed in an unlawful manner. Since the judgment of the court of first instance is unfair in conclusion, the part against the defendant among the judgment of the court of first instance (the part against the defendant) shall be revoked, and the part against the defendant among the lawsuit in this case (the part against the defendant) shall be dismissed, and the litigation costs after the appeal shall be borne by the defendant pursuant to Article 32 of the Administrative Litigation Act, and it shall be so decided as per Disposition.