[위헌제청][공1985.1.1.(743),36]
Where an appeal against the judgment of the court below which dismissed a lawsuit on account of its illegality was filed, but it is obvious that the appeal will be dismissed, whether the law applied with respect to the determination of the merits can be the premise of a judgment on the unconstitutionality of the law (negative)
In a case where an appeal against the judgment of the court below which dismissed a lawsuit on account of its illegality, as it cannot be deemed that a legitimate procedure for a prior trial cannot be seen as having been followed due to the exaggeration of a peremptory term, is unlawful, but it is obvious that such appeal will be dismissed, the determination on the merits cannot be deemed as the premise of
Article 108(1) of the Constitution
Seoul High Court Order 83 seconds33 delivered on September 30, 1983
Attorney Kim Jong-young, Counsel for defendant-appellant of the Republic of Korea
The request for unconstitutionality review is dismissed.
Article 47 (1) of the National Tax Collection Act provides that the attachment under Article 45 or Article 46 (1) of the same Act takes effect when the registration or record of the attachment is completed, and Article 47 (2) of the same Act provides that the attachment under paragraph (1) of the same Article takes effect on the delinquent amount arising after the registration or record of the attachment. Article 47 (2) of the same Act provides that once the attachment is registered on the real estate of a delinquent taxpayer, the effect of the registration on the delinquent amount of other taxes incurred to the delinquent taxpayer after the registration shall be unlimited, which is contrary to the Constitution guaranteeing the property rights of the people.
However, the Seoul High Court's decision (Seoul High Court Decision 83Gu942 delivered on May 29, 1984) on the administrative litigation of the revocation of the attachment of real estate, which is the party member of the case, held that the non-party did not have any legal effect of the attachment disposition after the date of payment, and that the non-party did not have any legal effect of the attachment disposition after the cancellation of the attachment disposition, and that the non-party did not have any legal effect of the attachment disposition on the non-party's real estate since the non-party did not have any legal effect of the attachment disposition on the non-party's non-party's real estate for the reason of the above disposition on the non-party's non-party's non-performance of the attachment disposition on July 10, 1981 and the non-party's tax office's non-party's non-performance of the attachment disposition on the non-party's real estate for the reason of the above disposition on the non-party's non-performance of the attachment disposition on December 17, 198.
According to the records of the case on the merits, the applicant filed an administrative litigation claiming the cancellation of seizure on November 10, 1981, against the Seoul High Court's rejection of the cancellation of seizure on November 1, 1982, which was subsequent to the completion of the registration of transfer of ownership, on the ground that it is unlawful and unjust, but it is obvious that the applicant withdrawn the lawsuit on March 12, 1983 and raised an objection against the competent tax authority on March 16, 198 as a procedure for the preceding trial of the case on the merits.
According to Article 55 (1) of the Framework Act on National Taxes, a person whose rights or interests have been infringed due to an illegal or unreasonable disposition or a failure to receive a necessary disposition under tax-related Acts shall file a request for review, but Article 66 (5) of the same Act provides that an objection against a disposition made by the head of a tax office, etc. shall be filed within 60 days from the date on which he/she becomes aware of the relevant disposition, and that an objection shall be filed within a peremptory period.
Therefore, if the wife of the tax office, who did not take the disposition of cancellation of the above seizure as alleged by the petitioner, did not take the action of cancellation of the above seizure, it is deemed that the applicant had been aware of the reasons for the first administrative lawsuit at the latest, and thus, the objection raised only after March 16, 1983, as seen above, cannot be deemed to have taken the procedure of the peremptory period, and therefore, the administrative litigation, which is the case on the merits, cannot be dismissed as it is illegal and illegal, and therefore, the judgment of the court below to the purport that the appeal against the above judgment of the court below is dismissed.
Thus, in the final appeal of this case, the application of this case cannot be the premise of the judgment on the constitutionality of Article 47 (2) of the National Tax Collection Act in the final appeal of this case (see Article 108 (1) of the Constitution).
Therefore, the motion for proposal of the unconstitutionality of this case is dismissed without merit, and it is so decided as per Disposition by the assent of all participating judges.
Justices Jeon Soo-hee (Presiding Justice)