Seoul Administrative Court-2014-Gu Partnership-68218 (Law No. 19, 2015)

If the original appeal is unlawful, the combined civil action also constitutes a rejection.

The judgment of the court below against the defendant is reversed, and the plaintiff's lawsuit is dismissed.

Article 51 of the Framework Act on National Taxes

2015Nu50834 Demanding revocation of a disposition rejecting national tax refund, etc.

Park AA

Korea

Seoul Administrative Court Decision 2014Guhap68218 decided June 19, 2015

May 19, 2016

June 9, 2016

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's lawsuit against the defendant shall be dismissed.

3. The plaintiff is responsible for total costs of litigation between the plaintiff and the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff KRW 82,924,790 as well as to June 19, 2015 as from October 1, 2014 to June 19, 2015.

5% per annum and 20% per annum from the next day to the day of full payment.

(The plaintiff reduced the claim against the defendant in the trial).

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked. The plaintiff's claim against the defendant is dismissed.

The plaintiff's action against the defendant shall be dismissed.

1. Scope of the judgment of this court;

A. Legal tender under Article 70(1) of the Civil Procedure Act which is applicable mutatis mutandis by Article 8(2) of the Administrative Litigation Act

The phrase “unconformity” means a relationship in which the legal effect of one of the two claims is denied on the same factual basis, and where the legal effect of one of the two claims is recognized, or where both claims are not acceptable on the other’s grounds of denial of the legal effect on the other’s claim, or where one of the parties’ factual relations or by a selective fact-finding that constitutes the cause of the claim, thereby affirming or denying the legal effect of one of the other’s legal effect or denying or opposing the other’s legal effect, and includes cases in which the determination process of each claim is necessarily mutually combined as well as cases in which it is impossible to be incompatible with one another under the Civil Procedure Act, because the grounds for the judgment on the other’s claim are affected by the other’s reasons for the judgment on the other’s claim, and which include cases in which one of the main co-litigants and the conjunctive co-litigants is inevitably incompatible with each other’s legal effect on the other’s claim (see, e.g., Supreme Court Decision 2007Ma275, Jul. 26, 2007).

B. The record reveals the following facts.

1) In the first instance court, the Plaintiff’s primary defendant at BB head of the tax office, and the first instance court’s revocation of the disposition rejecting national tax refund under Article 51(1) of the Framework Act on National Taxes, which the head of BB head of the tax office primarily sought confirmation as to the Plaintiff’s application for refund of national tax from October 18, 2013, whether the omission, which was not subject to the above provision, was illegal. The Plaintiff sought a return of the amount equivalent to the value-added tax paid by the Plaintiff on the grounds of Article 51(1) and (6) of the Framework

was made.

2) The first instance court rejected all the plaintiff's lawsuit against BB director of the tax office on the ground that "the provisions on the determination of the national tax refund under Article 51 (1) of the Framework Act on National Taxes concerning the refund of a national tax for which the taxpayer's claim for refund has already been determined is not only an internal administrative procedure but also an internal procedure for the refund of the national tax authority, and only a claim for refund is not finalized by the national tax refund determination under the above provision." Thus, the above determination of the national tax refund or the decision of refusal to refund of the application for this determination cannot be deemed a disposition which is the object of appeal because it does not have any specific and direct influence on the existence or scope of the taxpayer's claim for refund." Since the consolidation of related civil cases requires that the original appeal litigation is lawful, if the original appeal is unlawful, the combined civil lawsuit shall be dismissed as illegal." On the defendant's defense of safety, "the state's obligation to pay the refund of the value-added tax to the taxpayer constitutes a public law, and thus the taxpayer's claim for refund of value-added tax

3) The head of BB Tax Office and the Defendant appealed on the part of the first instance judgment against the Defendant; and

Since then, the Director of the Tax Office withdraws the appeal.

C. In light of the above legal principles, the claim against the director of the tax office BB and the claim against the defendant against the defendant does not constitute a case where the claim against the director of the tax office is legally incompatible. Therefore, Article 8(2) of the Administrative Litigation Act between BB and the defendant, Article 70 of the Civil Procedure Act

Since Article 67 (1) of the Civil Procedure Act does not have a relationship of preliminary co-litigation in a real meaning that applies mutatis mutandis under paragraph (1) of the same Article, the effect of blocking the confirmation due to appeal should be judged separately by each party.

D. If so, as long as only the defendant appealed on the part against the defendant among the judgment of the first instance, only the defendant's claim against the defendant shall be subject to the appellate trial.

2. Whether the lawsuit against the defendant is lawful

A. The plaintiff's ground of claim

The defendant is primarily to the plaintiff pursuant to Article 51 (1) and (6) of the Framework Act on National Taxes.

A party suit referred to in subparagraph 2 of Article 3, which is a civil suit seeking a return of unjust enrichment in preliminary

As a lawsuit, the amount equivalent to the value-added tax paid by the plaintiff is refunded.

B. Defendant’s defense prior to the merits

1) The Plaintiff added the aforementioned preliminary assertion at the trial, but as seen below, Article 51(1) of the Framework Act on National Taxes concerning the refund of national taxes is a claim for return of unjust enrichment with regard to the amount of erroneous payment, the existence and scope of which have already been determined as unjust enrichment, and thus, the said preliminary assertion cannot be deemed a separate ground for claim

The consolidation of related civil cases requires that the original appeal litigation is lawful, and in so long as the lawsuit against the director of the tax office BB, which is the original appeal litigation, is unlawful, the lawsuit against the defendant, who is a combined civil litigation, should be dismissed as it is unlawful.

C. Determination

1) Article 51(1) of the Framework Act on National Taxes concerning a national tax refund declares the legal doctrine that an immediate return without waiting for a taxpayer’s application for refund, in a case where any erroneous payment, the existence and scope of which have already been determined as unjust enrichment, is consistent with the justice and fairness. Therefore, the amount of erroneous payment, the existence and scope of which have already been determined, may be claimed as a civil lawsuit claiming a return of unjust enrichment by a taxpayer (see Supreme Court Decision 2013Da212639, Aug. 27, 2015).

In light of the above legal principles as seen earlier, the Plaintiff’s claim against the Defendant for the return of the amount equivalent to the value-added tax paid by the Plaintiff pursuant to Article 51(1) and (6) of the Framework Act on National Taxes is not a party litigation as stipulated in Article 3 subparag. 2 of the Administrative Litigation Act, but a civil lawsuit seeking the return of unjust enrichment, and constitutes a consolidation of related claim litigation as stipulated in Article 10 of the Administrative Litigation Act, which is a lawsuit seeking the return of unjust enrichment against the head

2) Meanwhile, the consolidation of related claim lawsuits as stipulated in Article 10 of the Administrative Litigation Act requires that the original appeal litigation be lawful. As long as the disposition of refusal to refund a national tax against the director of the tax office BB, which is an appeal litigation, is unlawful as it is not an administrative disposition, it is so dismissed, the lawsuit of return of unjust enrichment against the defendant, who is a related claim lawsuit as stipulated in Article 10 of the Administrative Litigation Act, cannot be dismissed (see, e.g., Supreme Court Decision 97Nu1990, Nov. 11, 1997).

3) Therefore, the defendant's above main defense is justified.

4. Conclusion

Therefore, the plaintiff's lawsuit against the defendant shall be dismissed in an unlawful manner. Since the part against the defendant in the judgment of the court of first instance as to the defendant is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance shall be revoked and the part against the defendant in the judgment of the court of first instance shall be dismissed as per Disposition.