Plaintiff (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul Regional Tax Office (Law Firm Corporation, Attorneys Go Young-seok et al., Counsel for the defendant-appellant)

July 5, 2012

Seoul Administrative Court Decision 201Guhap22679 decided November 11, 2011

1. The defendant's appeal is dismissed.

2. Of the appeal costs, the part arising between the Plaintiff and the Defendant is assessed against the Defendant, and the part arising from the intervention is assessed against the Intervenor joining the Defendant.

1. Purport of claim

The Defendant’s disposition of prohibiting departure against the Plaintiff on June 17, 2011 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision are as stated in the corresponding part of the judgment of the court of first instance, except for the addition of the judgment on the defendant's assertion in Paragraph 2 below, and therefore, it shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. The defendant's assertion

The Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) asserted that the instant disposition was lawful for the following reasons.

(1) The reason why the Plaintiff is delinquent in the transfer income tax of this case (hereinafter “the transfer income tax of this case”) is based on the position of denying the legitimacy of the national tax of this case, not on the deficiency of property, but on the basis of the position of denying the legitimacy of the national tax of this case. The Plaintiff’s social status, economic activities, and property status is difficult to understand formally. There is no fact that the Plaintiff paid the national tax of this case which was in arrears voluntarily once, and there is no ground to deem the Plaintiff’s departure from the Republic of Korea before the disposition of this case that there was no justifiable reason, and in light of the Plaintiff’s family relation and his family’s living degree, property status, occupation, and economic activities, there

(2) Since the Plaintiff left the Republic of Korea before the instant disposition without justifiable grounds, the request of the Commissioner of the National Tax Service for prohibition of departure is lawful. Even if there are justifiable grounds for the Plaintiff’s departure prior to the said request for prohibition of departure, the Commissioner of the National Tax Service’s request for prohibition of departure is merely merely a meaning of demanding the Defendant to voluntarily refrain from departure, and it does not necessarily require the Defendant’s prohibition of departure. Thus, the instant disposition itself does not constitute unlawful.

B. Determination

(1) As to the allegation that the plaintiff might flee property overseas

(A) In full view of the purport of the relevant provisions, including the Immigration Control Act, which was enforced at the time of the instant disposition, the main purpose of prohibiting departure of 50 million won or more is to prevent a delinquent taxpayer from making it difficult to enforce compulsory execution due to a delinquent taxpayer from departing from Korea by departing from Korea. Thus, the mere fact of default on national tax of a certain amount or more is not allowed in light of the principle of excessive prohibition, and it shall not deviate from or abuse discretion in determining whether the possibility of departing from Korea is possible (see Supreme Court Decision 2001Du3365, Jul. 27, 2001). In addition, the freedom of moving residence guaranteed by the Constitution as fundamental rights is the freedom to freely reside and stay in Korea without any interference of the State, and thus, the fundamental purpose of guaranteeing other fundamental rights guaranteed by the Constitution is to increase the effectiveness of the Constitution by promoting the expansion of mobility in all living areas, such as politics, economy, society, culture, etc., and to freely determine the freedom of stay and the contents of residence freely.

(B) However, the following circumstances cited earlier, i.e., (i) the Plaintiff imposed capital gains accruing from the auction of the Plaintiff’s real estate offered as the object of collateral security for Nonparty 1 Co., Ltd. for the purpose of the representative director; (ii) even if the Plaintiff denies legitimacy in the disposition of national tax as alleged by the Defendant, it is deemed that the objective rationality is not sufficient to readily conclude that the Plaintiff could escape its property from Korea on the sole ground of such circumstance; and (iii) the possibility that the Plaintiff could have concealed its property from Korea on the sole ground of a relatively independent source of income without any particular source of income. However, the Plaintiff asserted that the Defendant had received economic assistance from the Defendant’s head office, or the Plaintiff’s children; (iv) there was no possibility that the Plaintiff would have rejected the Plaintiff’s transfer of property from 90 years to 19 years to 19 years to 10; and (v) there was no possibility that the Plaintiff would have concealed its property from 90 years to 19 years to 19 years to 2, as alleged above.

(C) On the other hand, the intervenor asserts that if there is sufficient doubt about the concern about the concern about the concern about the flight abroad of the delinquent taxpayer's property, and there is reasonable doubt about the fact that the delinquent taxpayer manages and conceals the property in a confidential manner from abroad due to his name, etc., prohibition of departure against the delinquent taxpayer may prevent the delinquent taxpayer from enjoying the above concealed property, thereby making it difficult for the delinquent taxpayer to "recover execution" by managing and concealing the property abroad, it includes preventing the delinquent taxpayer from departing from the Republic of Korea.

However, considering the circumstances that the main purpose of the prohibition of departure system and the restriction on the fundamental rights of the people following the prohibition of departure should be limited to the minimum necessary extent and that it cannot infringe on its essential contents, barring any special circumstance, it cannot be deemed that a disposition of prohibition of departure against the delinquent taxpayer is possible on the sole basis of the suspicion that the delinquent taxpayer may flee his/her property to a foreign country, barring special circumstances.

In addition, in light of the aforementioned various circumstances, it is difficult to readily conclude that all the evidence submitted by the defendant and the intervenor alone constitutes a case where a reasonable doubt is required as to the fact that the plaintiff is engaged in the management and concealment of considerable property in a foreign secret, such as the name of the vehicle, etc., in light of the causes and duration of national taxes in this case, the period and frequency of the plaintiff's stay abroad before the disposition in this case, the existence of the plaintiff's overseas grounds and the current status of residence, and the result of the tax authorities' financial status investigation against the plaintiff.

(2) As to the allegation that the instant disposition is lawful on the grounds that the Plaintiff’s departure prior to the instant disposition had no justifiable grounds.

(A) According to the relevant provisions of Article 7-4(1) of the National Tax Collection Act, Article 10-5 of the Enforcement Decree of the National Tax Collection Act, etc., which was enforced at the time of the instant disposition, the Commissioner of the National Tax Service, upon the request for prohibition of departure, provides that the person whose number of entry overseas exceeds 50 million won without justifiable grounds, such as business purpose, medical treatment, death of lineal ascendants and descendants, etc. for the last one year from the date of the request for prohibition of departure, and whose tax claim can not be secured through seizure, public sale, etc., and the person who

However, the written disposition of this case states "the National Tax Service (Non-Taxation No. 1)" as the agency requesting prohibition of departure (Evidence No. 1). In reality, if the Commissioner of the National Tax Service does not request prohibition of departure, it is difficult for the defendant to ascertain the delinquency of the person subject to prohibition of departure directly and prohibit departure of the person subject to prohibition of departure. Even in the application for participation submitted by the plaintiff to this court as of January 10, 2012 by the Commissioner of the National Tax Service, considering all the circumstances asserted that the plaintiff requested prohibition of departure through the Commissioner of the National Tax Service

Furthermore, even though the Commissioner of the National Tax Service's request for prohibition of departure against the plaintiff for the immediately preceding one year from the date of the request for prohibition of departure to the plaintiff, the plaintiff's assertion that the plaintiff has been departing from the Republic of Korea three times for the immediately preceding one year is false. However, in light of each of the evidence Nos. 16 to 20, etc., the plaintiff's above three times departure from the Republic of Korea, connecting domestic construction enterprises, or linking the non-party 3 school foundation with foreign activities, etc. for international exchange at ○○○○○○○ University established and operated by the above corporation cannot be concluded to be false, and otherwise, there is no objective evidence sufficient to deem that the plaintiff's departure was conducted three times in the immediately preceding one year from the date of request for prohibition of departure from the above Commissioner of the National Tax Service, and there is no other circumstance to deem that the plaintiff falls under the other requirements of prohibition of departure under Article 10-5 (2) of the Enforcement Decree of the above National Tax Collection Act. In light of various circumstances, it is difficult to acknowledge the plaintiff's request for prohibition of departure.

Ultimately, the Defendant’s assertion that the request for prohibition of departure by the Commissioner of the National Tax Service prior to the instant disposition is not unlawful is difficult to accept.

(B) Therefore, the Defendant rendered the instant disposition based on the request by the Commissioner of the National Tax Service for prohibition of departure against the Plaintiff, and as long as the request by the Commissioner of the National Tax Service for prohibition of departure against the Plaintiff, which is the premise of the instant disposition, cannot be deemed lawful, it is reasonable to deem that the instant disposition was unlawful inasmuch as the Plaintiff’s request for prohibition of departure is combined with the above request for prohibition of departure, thereby completing the legal effect of prohibition of departure against the Plaintiff (see, e.g., Supreme Court Decisions 74Nu231, Dec. 28, 1976; 82Nu160, Oct. 12, 1982; 2006Du7942, Sept. 22, 2006). As alleged by the Defendant, even if the instant disposition is deemed to have been conducted regardless of the above request by the Commissioner of the National Tax Service for prohibition of departure, in light of various circumstances as seen in the above “2. B-B-1, etc.”

Ultimately, the defendant's assertion that the disposition of this case is legitimate because the plaintiff's departure from the Republic of Korea has no justifiable ground is not acceptable.

3. Conclusion

Therefore, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge)