1. On the first ground for appeal

According to relevant evidence and records, the court below is just in finding the fact that the plaintiff moved to the non-party 1, the non-party 3, and the non-party 4 living in the house of this case from June 1, 1989, his wife and the non-party 2, the non-party 3, and the non-party 4 living in the house of this case since the time when the plaintiff acquired the house of this case, and resided in the area of this case by November 5, 1991, and there is no violation of the rules of evidence or incomplete deliberation as pointed out in the grounds for appeal. The argument is without merit.

2. On the second ground for appeal

Article 5 (1) 6 (i) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) provides that one household (excluding high-class houses prescribed by the Presidential Decree) which is not subject to capital gains tax as prescribed by the Presidential Decree and the appurtenant land shall be income accruing from a transfer of land within the area calculated by multiplying the area of the building by the ratio prescribed by the Presidential Decree by the area on which the building is built, and the main sentence of Article 15 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14083 of Dec. 31, 1993) provides that "one house for one household" in Article 5 (1) 6 (i) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14083 of Dec. 31, 1993) provides that one household comprised of a resident and his spouse together with another household living at the same address or same place of residence shall own one house in Korea and reside for three years or more.

According to the reasoning of the judgment below and the records, while the plaintiff resided in the house of this case from June 1, 1989, which was the time when the plaintiff acquired the house of this case, with all members of the household of this case, on November 5, 1991, the non-party 1 and some of his children who were the plaintiff's spouse of this case transferred their residence, but the plaintiff and one of his children resided in the house of this case until June 29, 1992. Thus, even if the non-party 1 et al. did not reside in the house of this case for not less than three years, if they resided in the house of this case for not less than three years, the house of this case constitutes one house for one household which is exempt from capital gains tax.

Nevertheless, the court below held that the instant house does not constitute one house for one household, which is exempt from capital gains tax, on the ground that Nonparty 1, who is a part of the household members, did not reside in the instant house for three or more years, is erroneous in the misapprehension of legal principles as to one house for one household. The grounds for appeal pointing this out are with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)