Seoul High Court-207-Nu-11940 ( December 04, 2007)

Whether there exists a cause for a retrial under Article 451(1)8 of the Civil Procedure Act in the judgment subject to a retrial

Even if the Plaintiff received the notice of cancellation of attachment, it cannot be deemed that an administrative disposition, etc., which served as the basis of the judgment subject to a retrial, was changed. There is no evidence to acknowledge that there was a change in administrative disposition, etc., which served as the basis of the judgment subject to a retrial, and therefore, there is no ground for retrial under Article 45

Article 27 (Extinctive Prescription of Right to Collect National Taxes)

2018Nu75 Revocation of revocation of attachment

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○○ Head of tax office

May 10, 2018

May 31, 2018

1. The request for retrial of this case is dismissed.

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

Purport, purport of appeal and request for retrial

1. The original judgment and the first instance judgment are revoked.

2. On February 20, 2006, the attachment disposition rendered by the defendant (the defendant) on February 20, 2006 against the plaintiff (the plaintiff) about 00-0 Dong-dong 00-0 Dong-dong 611 is revoked.

1. Determination of the original judgment

The following facts may be recognized in each description of Gap's evidence 47, 48, and Eul's evidence 10-15 (including virtual numbers), which is obvious in the records, by integrating the whole purport of the pleadings.

A. On May 25, 1999, the Plaintiff (hereinafter referred to as the “Plaintiff”) failed to pay global income tax of KRW 00,000,000 for the year 197, the Defendant (hereinafter referred to as the “Defendant”) seized Nos. 00-0 and 805 of Seoul ○○○○-dong 00,000, 2 and 805, which were owned by the Plaintiff, but the Plaintiff dismissed the attachment on January 10, 2006.

B. However, as the Plaintiff did not pay the amount in arrears until February 10, 2006, the Defendant again seized ○○○○○-dong 00-0 ○○dong 611, which is owned by the Plaintiff again on February 20, 2006 (hereinafter “instant disposition”).

C. After that, the Plaintiff filed a lawsuit seeking the revocation of the instant disposition (Seoul Administrative Court 2006Guhap0000), but the judgment against the Plaintiff was rendered on April 6, 2007 and the Seoul High Court sentenced the appeal to 2007Nu0000, but was sentenced to the dismissal of appeal on December 4, 2007 (hereinafter referred to as "the judgment on review"). Although the appeal was filed, the judgment subject to review became final and conclusive by dismissal of the appeal was dismissed by the Supreme Court.

D. On April 3, 2008, the Plaintiff filed a petition for retrial with the court 2008 Jaee00, asserting that the Defendant rendered the instant disposition again on February 20, 2006 after the seizure on May 25, 199, and then there was a ground for retrial under Article 451(1)8 of the Civil Procedure Act. On October 8, 2008, the Plaintiff filed a petition for retrial with the court 2008 Jaee00, which dismissed the petition for retrial, but the appeal was dismissed by the Supreme Court.

E. On the other hand, on February 28, 2014, the Defendant sent a credit information provider notice stating that the Plaintiff’s delinquent amount was at least KRW 0,000,000 to the Plaintiff, and that the Plaintiff would be notified to the financial institution subject to the credit information provider (hereinafter “instant document”), and the Plaintiff received it on March 3, 2014.

F. On April 28, 2014, the Plaintiff filed a claim for the disclosure of information to the effect that “the document of this case is to be disclosed to the Defendant,” but filed a lawsuit seeking the revocation of the said decision of dismissal (Seoul Administrative Court 2014Guhap0000) by the Defendant, and was sentenced on September 19, 2014 to revoke the said decision of dismissal by the said court (hereinafter “information disclosure judgment”), and this judgment became final and conclusive.

G. The Plaintiff asserted that there was a ground for retrial under Article 451(1) Subparagraph 8 of the Civil Procedure Act in the judgment subject to retrial upon the confirmation of the "information disclosure judgment," and filed a petition for retrial with this court under Article 2014Nu000 of the Civil Procedure Act. On October 22, 2015, the Plaintiff filed an appeal after being sentenced to dismissal of the petition for retrial, but the appeal was dismissed by the Supreme Court.

H. Meanwhile, on February 23, 2006, the Plaintiff filed a lawsuit seeking revocation of the Plaintiff’s claim for rent (Seoul Administrative Court 2006Guhap0000), and the lawsuit was finally affirmed as the Plaintiff’s loss (hereinafter “related case”). The Plaintiff filed a petition for retrial under Article 451(1)8 of the Civil Procedure Act by asserting that the appellate judgment of the Seoul Administrative Court 2006Guhap000 case (hereinafter “related case subject to a retrial”) was final and conclusive and conclusive, and that there was a ground for retrial under Article 451(1)8 of the Civil Procedure Act in the appellate judgment of the above Seoul Administrative Court (hereinafter “relevant case”). On June 23, 2015, the Plaintiff dismissed the lawsuit for retrial on the grounds that the period of filing the lawsuit was expired, but the appeal was dismissed by the Supreme Court.

I. On April 29, 2015, the Seoul Administrative Court rendered a decision to determine the amount of litigation costs to be repaid to the Plaintiff as the Defendant’s information disclosure judgment became final and conclusive (Seoul Administrative Court 2014ia000). On June 22, 2015, the Defendant seized the Plaintiff’s claim for the above amount of litigation costs against the Defendant to cover KRW 00,000,000 of the Plaintiff’s delinquent amount. On June 30, 2015, the Defendant issued a notice of cancellation of the seizure of the above amount of litigation costs to the Plaintiff on June 30, 2015 (hereinafter “the notice of cancellation of attachment”).

2. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

In light of the fact that the Plaintiff received a final and conclusive judgment dismissing the instant judgment subject to retrial by asserting that there were two times grounds for retrial under Article 451(1)8 of the Civil Procedure Act regarding the instant judgment subject to retrial, and that there were grounds for retrial under Article 451(1)8 of the Civil Procedure Act, the Plaintiff filed a petition for retrial and received a final and conclusive judgment of dismissing the instant judgment subject to retrial, which is identical in the same content, the Plaintiff’s lawsuit for retrial of this case constitutes abuse of the right to institute a lawsuit, and constitutes an unlawful lawsuit.

B. Determination

Despite the fact that a request for retrial was dismissed and confirmed on several occasions for the same reason, it would be an obvious consequence that the plaintiff cannot be accepted by law to repeat the same request for retrial for the same reason. Furthermore, such a lawsuit may not be permitted as an abuse of power, barring any special circumstance (see, e.g., Supreme Court Decision 2005Da303, Nov. 10, 2005). As seen earlier, both the request for retrial before the judgment subject to retrial and related cases and the request for retrial in this case are grounds for retrial under Article 451 (1) 8 of the Civil Procedure Act. However, in the case of the request for retrial in this case, the plaintiff's request for retrial in this case is based on the notification of cancellation of attachment in this case, and it is different from the previous request for retrial in this case, and therefore, it is not sufficient to deem that the lawsuit for retrial in this case was an abuse of power, and there is no evidence to acknowledge it differently.

3. Determination on the existence of a ground for retrial

A. The plaintiff's assertion

Since the plaintiff's notification of cancellation of attachment in this case constitutes "when a civil or criminal judgment or other judgment or administrative disposition, which was the basis of the judgment on cancellation of attachment, was changed by another judgment or administrative disposition," there is a ground for retrial under Article 451 (1) 8 of the Civil Procedure Act in the judgment subject to review.

B. Determination

Article 451(1)8 of the Civil Procedure Act, which applies mutatis mutandis to an administrative litigation pursuant to Article 8(2) of the Administrative Litigation Act, provides that if a judgment or other judgment or administrative disposition, which forms the basis of a judgment, has been changed by another judgment or administrative disposition, then a lawsuit for retrial may be instituted. Here, “the basis of a judgment, etc.” refers to a case where a judgment, etc. legally binding force by a final judgment, or the content of a judgment, etc., becomes materials for fact-finding in a final judgment and may affect the fact-finding in a final judgment (see, e.g., Supreme Court Decision 94Da20570, May 31, 1996). In light of such legal principles, even if the Plaintiff was notified of the cancellation of the attachment, it cannot be deemed that the administrative disposition, etc., which forms the basis of the judgment subject to retrial, was changed by such judgment, and there is no evidence to acknowledge that there was any change in administrative disposition, etc., which forms the basis of the judgment subject to retrial.

The plaintiff's above assertion is without merit.

4. Conclusion

The plaintiff's request for retrial of this case is dismissed as there is no ground.