Supreme Court Decision 2008Du12566 (No. 25, 2008)

Seoul High Court 2007Nu29354 (208.02)

If a ground for retrial has already been asserted by an appeal, a lawsuit for retrial may not be instituted.

Although the plaintiff filed a request for a retrial that a tax payment notice as evidence of the judgment was altered, the plaintiff cannot file a lawsuit for retrial as it is final and conclusive by asserting it in the appeal process.

The contents of the decision shall be the same as attached.

l. The lawsuit of this case shall be dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Effect of claim, purport of appeal and request for retrial

On January 2, 2006, the disposition of imposition of capital gains tax of KRW 49,664,700 for the year 2004 (hereinafter referred to as "the disposition of this case") by the defendant (hereinafter referred to as "the defendant," hereinafter) against the plaintiff (hereinafter referred to as "the plaintiff,") is invalid.

l. Determination of the original judgment

The plaintiff filed a lawsuit against the defendant to seek confirmation of invalidity of the disposition of this case as Seoul Administrative Court 2007Gudan4967, and the Seoul Administrative Court dismissed the plaintiff's claim on October 10, 2007. The plaintiff appealed and filed an appeal as Seoul High Court 2007Nu29354, but the Seoul High Court rendered a decision to dismiss the appeal on July 2, 2008 (hereinafter referred to as "the decision to dismiss the appeal of this case"), and the plaintiff filed an appeal as Supreme Court 2008Du12566, and the facts that the decision to dismiss the appeal of this case became final and conclusive by the court on September 25, 2008 are clearly recorded.

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

A. Summary of the Plaintiff’s grounds for retrial

The defendant not only altered a tax notice on the disposition of this case, but also the plaintiff asserted violation of the principle of good faith in the appellate court of the case subject to review of this case, and the appellate court rejected the plaintiff's appeal. Thus, the judgment subject to review of this case constitutes grounds for retrial falling under "when the documents and other articles used as evidence of the judgment were forged or altered" under Article 451 (11) 16 of the Civil Procedure Act, which constitutes "when the judgment was omitted on important matters affecting the judgment" under Article 451 (9) of the Civil Procedure Act.

B. Determination

When the parties have already asserted the grounds for retrial by an appeal, a lawsuit for retrial on the final judgment cannot be filed (proviso of Article 451(1) of the Civil Procedure Act), and according to the statement in the appellate brief attached to the records, the plaintiff can be acknowledged as having asserted that the tax payment notice of this case was modified as to the disposition of this case and that there was a violation of the principle of good faith and good faith in the appellate brief submitted as of August 18, 2008 after the plaintiff appealed against the judgment subject to retrial of this case. The plaintiff's above ground for retrial cannot be a legitimate ground for retrial pursuant to the proviso of Article 451(1) of the

3. Conclusion

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