(영문) 서울중앙지방법원 2016. 10. 07. 선고 2016가합505474 판결

The defendant of the Gu office shall pay to the plaintiff 229,713,579 won with 5% interest per annum from May 14, 2014 to the service date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. On January 10, 209, the Plaintiff: (a) died on 10. 10. 5, and succeeded to the above property; (b) on 10. 5, the Plaintiff: (c) reported the transfer registration of the instant land to the Plaintiff on 10. 4; (d) on 10. 1, 209, the Plaintiff filed an application for the transfer registration of the instant land to the Plaintiff on 15. 1; (e) on 10. 5, 206, the Plaintiff filed an application for the transfer registration of the instant land to the Plaintiff for the transfer registration of the ownership at 10, 542, 847 won; and (e) on 3. 5, 209, the Plaintiff filed an application for the transfer registration of ownership with the Seoul High Court for the transfer registration of the instant land to the effect that the ownership registration of the instant land was invalid on 10,000 won; and (e) on 15, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 1, the purport of the whole pleadings

2. Article 52 of the Framework Act on National Taxes provides that the initial date of calculating the additional payment on the refund of national taxes shall be determined by Presidential Decree. Article 43-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (hereinafter referred to as the "former provision of this case") prior to the amendment by Presidential Decree No. 2606 of February 3, 2015 provides that the initial date of calculating the additional payment on the refund of national taxes shall be changed to the initial date of claiming the refund of national taxes. Article 43-3(1)5 (hereinafter referred to as "the amended provision of this case") of the Enforcement Decree of the Framework Act on National Taxes, which was amended by Presidential Decree No. 26066 of February 3, 2015, the amendment of Article 43-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes, which was amended by Presidential Decree No. 26066 of February 3, 2015, after the amendment of the Act, appears to apply the amendment provision of this case 31.

3) The Plaintiff’s filing date of the Plaintiff’s request for correction ( March 13, 2015) appears to be written in writing as of March 14, 2015, which is the day following the date of the Plaintiff’s request for correction. - 7- Payment, the Defendant is obligated to pay to the Plaintiff the Plaintiff an amount calculated by subtracting the additional payment on refund of the instant case that the Plaintiff received from the sum of the additional payment on the refund of national taxes calculated as shown in the attached table in the attached table in accordance with the previous provisions in the instant case as unjust enrichment, 229,713,579 (=235,562,199 - 5,848,6204) and delay damages.

① The refund of national tax has the nature of unjust enrichment and the refund of national tax has the nature of legal interest on the refund of national tax. In the case of the refund of national tax, the refund of national tax should be made in addition to the refund of national tax, which is its legal interest, from the time of payment or collection. Since the amendment of this case is contrary to the purport or nature of the refund of national tax, it violates the principle of legal reservation by deviating from its inherent limitations on the initial

② The refund of national tax and the refund of national tax on the refund of national tax are already determined at the time of the payment or collection of taxes, and since the Plaintiff is already able to claim the refund of national tax according to this time the judgment of this case became final and conclusive, the Defendant had already been obligated to refund the refund of national tax and the refund of national tax to the Plaintiff before February 3, 2015, the enforcement date of the amended provisions of this case. Accordingly, the amended provisions of this case are infringing the Plaintiff’s property rights, and thus contravenes the principle of tax payment and the prohibition of deprivation of property

③ The instant amended provisions are inconsistent with the principle of equality, as it discriminates against the payment of additional refund of national taxes, depending on whether the Plaintiff whose refund of national tax becomes final and conclusive before or after February 3, 2015, the Enforcement Decree of the Framework Act on National Taxes was amended or later.

④ The expectation that the Plaintiff would be paid the additional payment on the refund of national taxes starting from the date of national tax payment is prescribed by the previous provisions of this case, and the provisions of the previous provisions of this case are national taxes

4) Although the Plaintiff stated the amount of additional dues in the complaint in KRW 5,848,620, the amount of KRW 5,853,620 as recognized earlier, the Plaintiff continued to be stipulated in the above Act before amendment of the Framework Act on National Taxes on December 31, 2011. In addition, in this case, the Plaintiff could receive refund of national tax in accordance with the previous provisions of this case if the Plaintiff requested correction after confirming the cause of the amendment before the Enforcement Decree of the Framework Act on National Taxes was amended. However, on the sole basis that the Plaintiff filed a request for correction after the enforcement of the Enforcement Decree of the Framework Act on National Taxes, deeming the initial date of calculating the additional refund of national taxes as the filing date of filing a request for correction and thus, would infringe the Plaintiff’s expectation and trust that the Plaintiff would receive the additional refund of national taxes as the initial date of filing a request for correction. Ultimately, the amendment

3. Determination

As asserted by the Plaintiff, we examine whether the instant amendment provision is unconstitutional or unlawful.

A. According to Article 51 (1) of the Framework Act on National Taxes, the nature of the national tax refund and the additional refund on the refund of national tax, and Article 51 (1) of the time when the refund of national tax and the additional refund on the refund of national tax become final and conclusive, the head of a tax office shall immediately determine the amount as the refund of national tax in cases where the taxpayer has overpaid, erroneously paid, overpaid, or refunded tax, among the amounts paid as national tax or expenses for disposition on default. Here, the amount of erroneous payment refers to the amount of tax paid or collected, regardless of the absence of a return (in cases of a tax return) or the disposition on imposition (in cases of a tax assessment) which served as the basis of the payment or collection, or becomes null and void in a year. The amount of overpaid payment means the amount of tax which has been reduced in whole or in part as a result of its revocation or correction, and the amount of tax amount to be refunded to each individual tax law because the State had no justifiable reason for holding it. Thus, all the amount paid in excess,

- 9 - 있는 그 부당이득에 해당한다. 그러므로 이러한 부당이득의 반환을 구하는 납세의무자의 국세환급금채권은 오납액의 경우에는 처음부터 법률상 원인이 없으므로 납부 또는 징수시에 이미 확정되어 있고, 초과납부액의 경우에는 신고 또는 부과처분의 취소 또는 경정에 의하여 조세채무의 전부 또는 일부가 소멸한 때에 확정되며, 환급세액의 경우에는 각 개별 세법에서 규정한 환급 요건에 따라 확정되는 것이다(대법원 2009. 3. 26. 선고 2008다31768 판결 등 참조). 그리고 환급가산금은 그 부당이득에 대한 법정이자로서의 성질을 가지고(대법원 2008. 1. 10. 선고 2007다79534 판결 참조), 이 때 환급가산금의 내용에 대한 세법상의 규정은 부당이득의 반환범위에 관한 민법 제748조에 대하여 그 특칙으로서의 성질을 가진다고 할 것이므로, 환급가산금은 수익자인 국가의 선의��악의를 불문하고 그 가산금에 관한 각 규정에서 정한 기산일과 비율에 의하여 확정된다(대법원 2009. 9. 10. 선고 2009다11808 판결 등 참조). 나. 이 사건 개정규정이 법률유보의 원칙에 위배되는지 여부

On the other hand, in cases where unjust enrichment is returned, the bona fide beneficiary is liable to return the profit within the existing limit, and the malicious beneficiary is liable to return the profit with interest attached thereto (Article 748 of the Civil Act). The Civil Act provides that the beneficiary shall return the legal interest arising from the unjust enrichment to the malicious beneficiary. If the beneficiary does not have any legal ground after receiving the profit, the beneficiary shall be liable to return the profit as the malicious beneficiary (Article 749(1) of the Civil Act).

In light of the general provisions on unjust enrichment, in cases where the amount of tax payable upon a taxpayer’s request for correction is refunded, in light of the circumstances where, in general, the tax authority does not recognize the fact that the amount of tax payable falls under unjust enrichment until a taxpayer receives a request for correction, it cannot be deemed that such tax authority falls under a beneficiary of ordinary bad faith. Therefore, it cannot be deemed that the revised provisions of this case, which have the character as a special provision on Article 748 of the Civil Act on the scope of return of unjust enrichment, stipulate that the additional payment for the refund arising from a request for correction is not the payment price for the refund, but the date of filing a request for correction is set as accrued from the next day of the request for correction, not the payment

Therefore, as the plaintiff asserts, the amendment of this case does not violate the principle of legal reservation by deviating from the inherent limit of the initial date of the payment of national taxes required in Article 52 of the Framework Act on National Taxes.

C. Whether the instant revised provisions violate the tax-related laws and subordinate statutes and the prohibition of deprivation of property rights by retroactive legislation, or violate the principle of protection of trust.

Retroactive legislation is classified into "sed appeal legislation" and "inte appeal legislation," depending on whether the new law does not act on the facts that have already been terminated or is in progress, and it is a principle that it is not permitted constitutionally, and it is exceptionally permitted only when there are special circumstances (see, e.g., Constitutional Court Order 2006HunBa99, May 29, 2008; Constitutional Court Order 20105, Jul. 24, 2014). Furthermore, the principle of non-payment of tax statutes means only a continuous fact that the relevant tax law cannot be applied to the facts that have already been completed before the enforcement of the relevant tax law, or the application of the statutes to the facts that have already occurred after the enactment of the relevant tax law does not limit the application of the statutes to the facts that have already been completed (see, e.g., Supreme Court Decision 93Nu20726, Feb. 25, 199).

- 11 - Even in cases where an existing fact or legal relationship is subject to application of the law that is more unfavorable than the previous one in relation to the property rights of the people, if such fact or legal relationship is not completed or terminated before the enforcement of the amended law, it shall not be deemed that the application of the amended law is a violation of property rights by retroactive legislation prohibited under the Constitution. However, in cases where the trust of the people in the existence of the statute prior to the amendment is recognized as more worthy of protection than the public interest demand for the application of the amended law, there is room to limit the application in order to protect the trust of such people (see, e.g., Supreme Court Decisions 2008Du8918, Apr. 23, 2009; 2013Du26552, Apr. 24, 2014). In order to determine whether the amendment violates the principle of trust protection by infringing the trust of the parties to the existence of the statute, on the other hand, it should be compared to the protection value of the infringed interest, the degree of the infringement, the degree of trust infringement, the 20.

national tax refund arising upon request by a taxpayer shall be filed by the tax office for rectification.

It is confirmed when the tax base or tax amount to be refunded is accepted by the Gu.

As seen earlier, the national tax refund arising upon a request for correction shall be corrected by the taxpayer;

Inasmuch as it cannot be deemed to have become final until filing a claim for correction, the national tax refund and its amount before filing the claim.

It can not be said that the legal relationship on the additional payment on the refund of national taxes is completed or terminated.

The amended provisions of this case conflict with the principle of non-payment of tax laws and regulations, which constitute a true level legislation.

B. It can not be said that the infringement of property rights by retroactive legislation prohibited under the Constitution.

In addition, even if the plaintiff was trusted in the continuation and application of the previous provisions of this case,

The purpose and legislative background of the amended provisions of this case are the initial date in calculating the additional payment of national taxes under the previous provisions of this case.

set the date of national tax payment and giving excessive profits to the taxpayer without reasonable grounds.

interest at the time of return of unjust enrichment under the Civil Code starting from the reflective consideration of this issue

In accordance with the legal principles on the time of occurrence of annual damages, the calculation date of additional refund on national taxes is adjusted.

The tax authority seems to have been responsible for national tax refund before the taxpayer's request for correction is generally filed.

The type of this case cannot be seen as a malicious beneficiary because it is impossible to know the occurrence of the gold.

When the amended provisions of this case become the beneficiary of bad faith than the preceding provisions, unjust enrichment

Compared to the legal principles of return of unjust enrichment under the Civil Act that allows a statutory interest to be returned.

In addition, the plaintiff's trust interest in additional dues under the previous provisions of this case is the amended provisions of this case.

(1) Along with the fact that there is no greater purpose than the public interest purpose to be realized through

In this case, the revised provision of this case cannot be deemed to be in violation of the principle of trust protection.

D. Whether the amendment of this case violates the principle of equality

The principle of equality declared in Article 11(1) of the Constitution denies all discriminatory treatment.

Commission shall not mean absolute equality, but arbitrary discrimination in the application of legislation and law

this means the relative equality that should not be made, and discrimination with reasonable grounds is contrary to the principle of equality.

It should not be done (see Constitutional Court Order 98HunGa7 delivered on September 30, 1998, etc.).

The revised provisions of this case shall correct the initial date of calculating the additional payment on the excess payment upon request for correction.

on the day following the filing date, the refund of the national tax in excess upon a request for correction shall be the taxpayer’s

The above national tax refund is due to the tax authority's decision of correction.

upon the expiration of a part of the tax liability, and upon the taxpayer’s request for rectification, the amount shall be determined by

In case of refunding the amount of tax payable, whether the tax authority generally requests for correction by the taxpayer;

Since it is not known that the refund amount constitutes unjust enrichment, it is normally malicious.

Unless it is a beneficiary, the amended provisions of this case more than the existing provisions of this case shall be a bona fide beneficiary.

If he becomes a beneficiary of bad faith, the Civil Act requiring the return of unjust enrichment by adding legal interest thereto.

In light of the legal principles on return of unjust enrichment, there are reasonable grounds.

I would like to say.

Therefore, pursuant to the revised provisions of this case, a request for correction was made before February 3, 2015, the enforcement date of the revised provisions of this case.

In other words, it would be reasonable that the additional payment on refund of national taxes to be paid varies depending on whether it is or not.

No violation of the principle of good faith shall be considered.

E. Sub-decision

Ultimately, the plaintiff's assertion based on the premise that the amendment provision of this case is unconstitutional and illegal is unconstitutional.

In addition, there is no reason to consider.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

section 3.

심급 사건

서울중앙지방법원 2016.10.07.선고 2016가합505474

-서울고등법원 2017.05.23.선고 2016나2074232

-대법원 2018.06.28.선고 2017다238660

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