Suwon District Court-2017-Resatis-34 ( December 20, 2017)

Unless special circumstances exist, the judgment of the court of final appeal may not be a legitimate ground for retrial, regardless of whether a omission in judgment was alleged as the ground for final appeal.

In a final appeal on a judgment subject to a retrial, regardless of whether the omission of judgment was alleged as the grounds of final appeal, a suit for a retrial cannot be filed on the grounds of omission in judgment.

2018Nu30954. Revocation of revocation of revocation of the refund of value-added tax

KimA

○○ Head of tax office

Suwon District Court Decision 2017Jhap34 Decided December 20, 2017

on October 28, 2018

on April 25, 2018

1. Revocation of a judgment of the first instance;

2. The litigation of this case shall be dismissed.

3. The Plaintiff (Plaintiff) shall bear the total cost of the litigation for retrial.

Purport, purport of appeal and request for retrial

The judgment of the court of first instance, the judgment subject to a retrial, and the judgment of the court of first instance are revoked. A disposition rejecting correction of the value-added tax amounting to KRW 7,397,138, and penalty tax amounting to KRW 3,353,862 rendered by the defendant (hereinafter referred to as "defendant") against the plaintiff (hereinafter referred to as "Plaintiff") on August 31, 2015 shall be revoked.

1. The grounds for the court’s explanation as to this part of the judgment subject to a retrial are the same as that of the judgment of the first instance, except for the modification of the pertinent part of the judgment of the first instance as follows. As such, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ 3 7 to 8 'the Judgment subject to review' will be deleted.

○ 3rd 9 parallel "2016Nu67730" added "the subject matter of review" to "the right side of 2016Nu67730". The 3rd 10th 10th "the subject matter of review" is "the subject matter of review by a ruling of dismissal of an appeal (2017du4406)" and "a ruling of dismissal of an appeal (2017du44060) by means of a hearing and a ruling of dismissal of an appeal (2017du44060)".

A. In an administrative litigation, when an appellate court rendered a judgment on the merits of a case at the appellate court, it is not possible to institute a lawsuit for retrial against the judgment of the first instance (Article 8(2) of the Administrative Litigation Act and Article 451(3) of the Civil Procedure Act). Thus, a lawsuit for retrial filed at the appellate court against a judgment of the first instance, which is not the appellate court judgment, is not the subject of retrial, and is not an unlawful lawsuit which lacks the requirements for litigation for retrial and cannot be deemed as a lawsuit violating the jurisdiction. However, even if the judgment of the first instance is indicated in the judgment of the appellate court, if the grounds for retrial alleged in the grounds for retrial are deemed to relate to the judgment of the appellate court (the same shall apply to cases where the judgment of the first instance is common to the judgment of the first instance and the judgment of the first instance), such lawsuit is limited to the appellate court, and the indication of the judgment to review is deemed to be erroneous, and it is reasonable to transfer the said lawsuit to the appellate court, which is the competent court for retrial (see, e.g., the appellate court’s appellate court’s judgment’s appellate court’s appellate court’s appellate court’s appellate judgment’s appellate court’s appellate court’s appellate judgment’s appellate judgment and determination.

B. The Plaintiff asserted at the first instance court that the first instance court specified the instant judgment subject to a retrial as a judgment subject to a retrial, and that there was a ground for a retrial under Article 451(1)9 of the Civil Procedure Act (when the judgment was omitted on important matters that may affect the judgment).

However, in comparison with the instant judgment subject to a retrial and the grounds for the judgment of the first instance court, the grounds for a retrial of the Plaintiff’s assertion are common in all two judgments, and the instant judgment subject to a retrial is clear that the judgment of the first instance court, which dismissed the Plaintiff’s claim, is justifiable. Therefore, it is reasonable to deem that the instant judgment subject to a retrial, which is an appellate judgment, was subject to

Nevertheless, since the first instance court did not transfer to the appellate court and directly tried and judged, the judgment of the first instance court should be revoked in the end by violating the exclusive jurisdiction.

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

A. The plaintiff's assertion

Article 2-2 subparag. 3 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2254, Jul. 6, 2010) entered into force, and an officetel was included in the scope of quasi-housing. Since the Plaintiff acquired the instant officetel after the said provision enters into force, the Plaintiff’s lease of the said officetel for residential purposes does not constitute a non-exclusive use since it was the first lease of the said officetel for residential purposes. The instant judgment subject to a retrial has omitted the determination of the Plaintiff’s assertion that “the lease of the instant officetel for residential purposes does not constitute a non-exclusive use.” This constitutes an important matter that may affect the judgment.

Therefore, both the original judgment and the first instance judgment shall be revoked, and the instant disposition shall be revoked.

B. Determination

1) In light of the proviso of Article 451(1) of the Civil Procedure Act, which applies mutatis mutandis under Article 8(2) of the Administrative Litigation Act, a retrial suit cannot be filed against the judgment of the court of final appeal which became final and conclusive on the ground of appeal, and if so, the judgment of the court below

If omitted, the original copy of the judgment is served and read the grounds for the judgment, and barring any special circumstance, barring any special circumstance, barring any special circumstance, it shall be deemed not to have known of the grounds for final appeal, and thus, it shall not be deemed to have been asserted as the grounds for final appeal.

Unless there exist any circumstances, the lower court’s judgment may not be a legitimate ground for retrial, irrespective of whether a final appeal filed an omission of judgment in the final appeal as a ground for final appeal (see, e.g., Supreme Court Decisions 2011Da58236, Mar. 29, 2012; 2005Da58236, Jan. 12, 2006). This also applies where a final appeal against a judgment subject to final appeal was dismissed by a judgment of non-trial under Article 4 of the Act on Special Cases Concerning the Procedure for Appeal (see, e.g., Supreme Court Decision 2014Da50944, Nov. 13, 2014).

2) As to the instant case, the Plaintiff may not file a lawsuit for a retrial on the grounds of omitting a judgment on the judgment subject to a retrial, regardless of whether the Plaintiff asserted an omission of judgment in the final appeal as alleged in the grounds for final appeal in accordance with the above legal doctrine as to the judgment subject to a retrial, regardless of whether the Plaintiff asserted as the grounds for final appeal in the final appeal as to the judgment subject to a retrial pursuant to the above legal doctrine, regardless of the fact that the original copy was served to the Plaintiff on April 12, 2017, and the Plaintiff appealed against the judgment subject to a retrial on August 24, 2017, but the final appeal was dismissed on August 24, 2017.

4. Conclusion

Therefore, the judgment of the first instance court is revoked, and the lawsuit of this case is unlawful (see, e.g., Supreme Court Decisions 91Da29057, Nov. 12, 1991; 80Da2126, Nov. 11, 1980); and thus, it is dismissed.