Scope of ex officio hearing in administrative litigation (94.11. 94Nu4820)

Article 26 of the Administrative Litigation Act provides that if it is deemed necessary, the court may ex officio examine the evidence and determine the facts that the parties did not claim. However, this provision is only an exception to the party principle or the pleading principle, which is related to the special nature of the administrative litigation, and it does not allow the court to determine the facts that the parties did not claim without any restriction, and it is only possible to ex officio investigate the evidence and determine the facts that are contained in the records, and it is only possible to determine the examination of the evidence within the scope of the claims only when the court deems it necessary.

Article 26 of the Administrative Litigation Act

Supreme Court Decision 87Nu1182 decided Apr. 27, 198 (Gong1988,927) 91Nu2854 decided Nov. 8, 1991 (Gong1992,130) 91Nu6030 decided Mar. 10, 1992 (Gong192,1327)

[Judgment of the court below]

The director of Busan District Office

Busan High Court Decision 93Gu4106 delivered on March 18, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The issue is that even if the time of the transfer of the instant apartment house is considered to be May 10, 1990 as the time of the original adjudication, the Plaintiff transferred the said apartment house for the purpose of moving residence, completed the registration of ownership transfer on October 4, 1989, and transferred the dwelling on October 4, 1989, and since there are no data on the date of settlement of the price of the said apartment house, the time of acquisition of the said apartment house is no longer deemed to be October 4, 1989, which is the date of receipt of the registration. Thus, since the transfer date of the said apartment house falls within one year from the date of acquisition of the said apartment house, it constitutes one house for one household which is exempt from the tax under Article 6 (1) of the Enforcement Rule of the Income Tax Act, and the court below dismissed the Plaintiff’s request without examining this point, it constitutes a violation of the law

However, according to the records, the head of the tax office of the defendant, on January 28, 1989, shall consider the time of transfer of the building of this case to be December 29, 1988, since the plaintiff acquired the new Jinsung apartment, 104 Dong 402, 102, and transferred the resident registration to the location, and thereafter there is real estate for which ownership transfer registration was made on October 4 of the same year. In relation to the taxation of this case where he separately owned the house of this case on May 10, 1990, the plaintiff sold the real estate of this case to the non-party and received the remaining proceeds from the sale on December 29, 198, before acquiring the apartment house, and therefore, at the time, the plaintiff did not own other building than the building of this case, and therefore, the plaintiff did not claim the cancellation of the taxation disposition of this case, and the decision of the court below was rejected as the result of the plaintiff's appeal, as alleged in the above.

Article 26 of the Administrative Litigation Act provides that if it is deemed necessary, the court may conduct ex officio an examination of evidence and determine facts that the parties did not claim. However, this provision is only a exception to the party principle or the pleading principle, which is related to the special nature of the administrative litigation, and it does not allow the court to determine facts that the parties did not claim without any restriction, and it is not a court may conduct ex officio an examination of evidence and make a determination on the basis thereof (see, e.g., Supreme Court Decision 87Nu182, Apr. 27, 198; 91Nu2854, Nov. 8, 191; 91Nu6030, Mar. 10, 1992). However, the court may examine and determine the evidence within the scope of claims only when it deems it necessary (see, e.g., Supreme Court Decision 91Nu6030, Apr. 27, 198).

However, in this case, the plaintiff is found to have submitted a certificate (No. 12) stating that the transfer of the above apartment for the purpose of moving into the above apartment for the purpose of moving into the above apartment for one year (see, e.g., Supreme Court Decision 113No. 113, Oct. 4, 1989). Thus, even if the submission of the above certificate is deemed to be an indirect statement in the same place of appeal as the place of appeal, the defendant, who is the tax authority, argued that the acquisition date of the above apartment was the same as that of the plaintiff moving into the above apartment (see, e.g., legal brief dated Jan. 5, 1994). The plaintiff did not clearly dispute the acquisition date of the above apartment, and it should be deemed that the purchaser of the apartment, barring special circumstances, paid the entire purchase price to move into the apartment for moving into the apartment for the purpose of moving into the apartment for the purpose of moving into the apartment, and therefore, it should not be seen that the plaintiff acquired it within 10 years prior to the acquisition date.

Therefore, we cannot accept the appeal that criticizes the judgment of the court below by asserting that the registration date of the transfer of apartment that is not the occupancy date of the above apartment is the date on which the plaintiff acquired ownership under the Income Tax Act.

Therefore, the appeal of this case is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)