경정처분이 나온 경우 소의 대상과 그에 따른 전심절차 및 제소기간 충족여부의 판단 - 대법원 2013. 2. 14. 선고 2011두25005 판결을 중심으로 -

Abstract

In the event administrative disposition is changed even while a revocation suit is under way against the administrative disposition, or if a disposition which was the subject of the suit undergoing disputes following the filing of a revocation suit has been changed by the authority of the disposition, whichever becomes the subject of the suit is an issue. This is so because if the subject of suit is wrongfully designated and a suit is filed with a court of law, it may be dismissed by virtue of the extinction of the subject, and even if that were not the case, it may be dismissed for reasons such as that advance review procedures are not satisfied or the period in which the suit was to filed has elapsed, among others. Therefore, discussing which among the initial disposition and corrective disposition becomes the subject of suit is extremely crucial in securing the substantive right to trial. Precedents have held the view that even after the new installation of Article 22-2 of the Framework Act on National Taxes, corrective dis- position would become the subject of a revocation suit by taking on the position of the merger theory in so far as the corrective disposition of increased amount. This may be deemed to be in line with the gross amount principle with respect to the subject matter of a tax administrative suit for stressing upon a one time resolution of disputes. However, if the gross amount principle and the ensuing merger theory are strictly adhered to, tax payers would likely be adversely affected in connection with the determination of the advance review procedures and the period of filing suit, and so appropriately relaxing and applying it would be in line with the intentions of the legislators who newly installed Article 22-3 of the Framework Act on National Taxes. In view of which, precedents have held that if causes of illegality in between the initial disposition and corrective disposition were common, and given that lawful advance review procedures were executed with respect to the initial disposition, the advance review procedures need not be executed again in filing a revocation suit in so far the corrective disposition of increased amount is concerned, and that results such as the dismissal of suit for the lack of advance review procedures against the plaintiff when adhering to the merger theory are prevented. The judgement of the subject (judgment numbered 2011DU25005 sentenced on February 14, 2013 by the Supreme Court) is also deemed to have considered the period of filing suit at the time representing demurral against the corrective disposition of increased amount, not at the time of formalistic change of the relief sought as for the starting point of the period of filing suit in the event the causes of illegality between the initial disposition and corrective disposition were common for the purposes of preventing critical results such as the dismissal of suit for the lapse of the period of filing suit which may arise in adhering to the merger theory in this context.