[2] The legal nature of the fund-raising of the Culture and Arts Promotion Fund under Article 19(1) of the Culture and Arts Promotion Act

[3] Whether the provisions of Articles 19 and 19-2 of the Culture and Arts Promotion Act concerning the collection of the Culture and Arts Promotion Fund are unconstitutional against the principle of no taxation without law and prohibition of excessive delegation or the principle of prohibition of comprehensive delegation (negative)

[2] The Culture and Arts Fund is established to support projects and activities for the promotion of culture and arts and is managed as an independent account. The legal nature of the fund-raising fund constitutes public charges imposed on a specific group that wishes to use performance halls, etc. under each subparagraph of Article 19(1) of the Culture and Arts Promotion Act in order to meet the public interest for the promotion of culture and arts.

[3] Since the fund-raising of literary funds is not a tax but a special charge, it is not problematic whether it violates the principle of no taxation without law under Article 59 of the Constitution. The upper limit of the collected amount compared to admission fees (admission fees) is regulated by the Culture and Arts Promotion Act. Since the fund-raising procedures are also stipulated in the same Act in detail, the provisions of Articles 19 and 19-2 of the same Act concerning the fund-raising of literary funds do not violate the principle of no taxation without law and prohibition of excessive delegation or the principle of prohibition of comprehensive delegation.

2. The preliminary claim is dismissed.

3. Litigation costs shall be borne by the plaintiff.

2. Preliminaryly, the Defendant’s notice of approval for the collection of the Culture and Arts Promotion Fund made to the ELTC Foundation on December 18, 2001 shall be revoked.

A. The defendant is a corporation which is established by the Culture and Arts Promotion Act (hereinafter referred to as the "Act") and is engaged in the operation, management, etc. of the Culture and Arts Promotion Fund (hereinafter referred to as the "culture and Arts Promotion Fund") as one of the target projects. The defendant may, with the approval of the Minister of Culture and Tourism (hereinafter referred to as the "Minister"), raise funds from persons viewing or using facilities, such as performance halls, museums, art galleries, designated cultural heritage assets, etc., to raise a cultural heritage fund. The method of raising funds shall be made by the method of collecting funds from the Minister in accordance with the contents of the approval from the persons viewing or using the facilities and submitting the collected funds and related materials to the defendant (Article 19 of the Act), if there is a person who has received a rent from the operator of the facilities subject to the collection, and the operator of the facilities subject to the collection shall pay and submit the collected funds and related materials to the operator of the facilities in lieu of the operator of the facilities subject to the collection, and the operator of the facilities subject to collection shall pay and submit the collected funds to the defendant (Article 19-2).

B. The plaintiff is a corporation that has rented the performance hall in the Gangnam-gu Seoul Metropolitan City (hereinafter referred to as the "EL branch") from the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the EL branch of the Gu branch of the EL branch

C. On December 13, 2001, the Defendant received the approval from the Minister for the Culture and Arts Fund in 2002, and notified the Plaintiff of the approval letter on December 18, 2002, and the ELD Foundation immediately notified the Plaintiff of the approval letter. The approval letter requires that the Plaintiff pay 6.0% of the admission fee if the admission fee is at least 3,001 won with respect to the performance hall such as the ELD Center (the amount to be collected and paid by the Plaintiff shall be calculated by the formula of 1.06 x06).

D. The Plaintiff sold admission tickets by stating that the Culture and Arts Fund is included in the fee without indicating the maximum amount of the admission tickets for the above performance, and did not pay the money collected from the Culture and Arts Fund to the El branch Foundation. In applying Articles 28 and 29 of the Act, the Plaintiff paid 15,796,814 won, and 141,85,778 won, respectively, to the Plaintiff on the ground that the Plaintiff did not perform its obligation to collect the fee, by applying Articles 28 and 29 of the Act, on the ground that the notice of the hearing for imposition of fines for negligence was defective, the amount collected from December 2001, and the amount collected from January 202.

[culture and Arts Promotion]

Article 19 (Raising of Fund) (1) The Korean Culture and Arts Promotion Institute may, if deemed necessary for raising the Fund, raise funds to those who view or use the following facilities with the approval of the Minister of Culture and Tourism in accordance with the standards set forth in the attached Table:

1. Performance halls;

2. Museums and art galleries; and

3. Designated cultural properties (excluding the cultural properties owned by religious organizations) for which the admission fee is collected under Article 39 of the Protection of Cultural Properties Act.

(2) Where the Minister of Culture and Tourism grants approval under paragraph (1), he shall notify the Minister of Government Administration and Home Affairs thereof in Gazette.

(3) The Korean Culture and Arts Promotion Institute shall, when it obtains approval for raising funds pursuant to paragraph (1), notify the operator of the facilities subject to raising of the details of approval for raising funds, and the operator of the facilities subject to raising funds notified of the details of such approval shall collect from persons who view or use the relevant

(4) When the operator of the facilities subject to collection under paragraph (3) pays the collected amount, he shall submit the data pertaining to such collection together.

(5) The amount of contributions under paragraph (1), designation of a fund-raising agency, fees for contributions, method of contributions, data related thereto and other necessary matters shall be determined by the Presidential Decree.

(1) A person who rents a facility from the operator of the facility from which money is collected pursuant to the provisions of Article 19 (3) shall, in lieu of the operator of the facility from which money is collected, raise funds from those who view or use the facility in question, and pay and submit the collected amount and related materials to the operator of the facility from which money is collected.

(2) An operator of facilities subject to collection shall pay and submit the collected amount referred to in paragraph (1) and related materials to the Korean Culture and Arts Promotion Institute.

(3) Matters necessary for the amount of fund-raising under paragraph (1), fees for fund-raising, method of fund-raising, and related data shall be prescribed by Presidential Decree.

Article 28 (Administrative Fines) (1) Any person who has failed to perform the obligation to collect money or to pay the amount of money in violation of the provisions of Article 19 (3), 19-2 (1) or (2) without any justifiable reason, shall be punished by a fine for negligence not exceeding 10 million won.

(2) A person who fails to submit relevant materials or submits false materials in violation of Article 19 (4) or 19-2 (1) or (2) without any justifiable reason shall be punished by a fine for negligence not exceeding five million won.

Article 29 (Procedures for Imposition and Collection of Fines for Negligence) (1) The Minister of Culture and Tourism shall impose and collect fines for negligence under Article 28, as prescribed by Presidential Decree.

(4) Where no objection is raised within the period under paragraph (2) and a fine for negligence is paid, it shall be collected in the same manner as delinquent national taxes are collected.

[Evidence] Facts without dispute, Gap evidence No. 1, Gap evidence No. 2, Gap evidence No. 3, Gap evidence No. 5-1, 2, Eul evidence No. 1, the purport of the whole pleadings

2. Judgment on the plaintiff's primary claim

A. The plaintiff's assertion

The defendant's letter of cooperation to collect money sent to the El branch Foundation on December 10, 2001 reaches the plaintiff through the El branch Foundation, and the defendant issued a disposition ordering the plaintiff to pay the amount of money, and the above disposition of imposition is unlawful for the reasons as seen in paragraph (a) of the following 3.

B. Determination as to the legitimacy of the main claim

(1) Examining the provisions of the above law as to the Culture and Arts Fund Raising money, the defendant set a specific amount and did not order the operator of the facilities subject to raising money (hereinafter referred to as the "cultural facilities"), but merely notified the operator of the cultural facilities with the approval of the Minister as to the raising of money from the Culture and Arts Fund, and if such notification is made, the operator of the cultural facilities is obligated to collect the Culture and Arts Fund and pay it to the defendant as a matter of course in accordance with the provisions of the law, and the owner of the cultural facilities has the obligation to collect the cultural facilities and pay the money to the operator of the cultural facilities. In addition, if the operator of the cultural facilities or the lessee fails to perform such obligation, the Minister may indirectly impose a fine for negligence on the operator of the cultural facilities, and there is no provision that the amount of money raised by the general civil procedure shall not be subject to any civil claim as to the amount of money not collected.

(2) As such, the Defendant’s notification of the approval of the Minister to the cultural facility operator is legally obligated to collect and pay the cultural facility operator and the lessee as a matter of course, so the Defendant’s notification of approval is an administrative disposition that directly affects the status of the public law of the cultural facility operator and the lessee. However, the Defendant’s notification of approval is an administrative disposition that directly affects the status of the public law of the facility operator and the lessee. However, the Defendant’s sending a letter of cooperation to the lessee at the preceding stage of 2002 does not affect any legal status of the cultural facility operator or the lessee, and thus, it cannot be deemed that the notification of such cooperation is an administrative disposition subject to administrative litigation.

(iii) Accordingly, the plaintiff's primary claim that assumes that the notification of the above cooperation is an administrative action is unlawful.

3. Judgment on the plaintiff's conjunctive claim

A. The plaintiff's assertion

Since a cultural facility operator first determines pure admission fees to be received from visitors and calculates certain ratio of admission fees and collects them from visitors, instead of collecting them from visitors, and pays a certain ratio of admission fees to the Defendant under the name of the literature fund, the literature fund, which is paid from visitors, has a character corresponding to taxes. Therefore, even if a taxpayer, taxable object, tax base, tax rate, time of payment, etc. is clearly determined by law in accordance with the principle of no taxation without law, Article 19(1) of the Act provides that “when the Defendant deems it necessary, he/she may collect money from the literature fund with the approval of the Minister,” and entirely delegates the establishment and scope of tax liability to the Defendant. This is in violation of Article 59 of the Constitution and the principle of no taxation without law and prohibition of comprehensive delegation under Article 75 of the Constitution, so the instant disposition based on such unconstitutional provision must be revoked.

B. Relevant statutes

[Attachment]

(c) Markets:

(1) The legal nature of the fund-raising

The literature and art Fund is established to support projects or activities for the promotion of culture and arts and is managed as an independent account, and its financial resources are raised by the Government’s contributions, donations from individuals or corporations, and contributions made by the amount collected pursuant to Articles 19 and 19-2 of the Act. The legal nature of the literary fund-raising is that it is a public charge imposed on a specific group that intends to use a performance hall, etc. under each subparagraph of Article 19(1) of the Act in order to meet the public interest for the promotion of culture and arts.

Such special charges are similar to taxes in that they set a monetary payment obligation that does not guarantee any consideration by a public institution. However, in that they are imposed for the purpose of appropriating funds for special tasks, they are distinct from taxes imposed for the purpose of appropriating funds for general national financial demand, and are collected from a specific group above all, and they are collected from the general public according to their capacity. Since traditional public charges such as taxes and charges are unable to cope with the new demand of modern countries smoothly, it is recognized that the introduction of new types of special charges such as special charges is necessary. According to Article 37(2) of the Constitution of the Republic of Korea, all freedom and rights of the people can be restricted by law only when necessary for national security, maintenance of order or public welfare, there is no constitutional problem (see Constitutional Court Order 97Hun-Ba84, Oct. 21, 199, etc.).

However, the principle of excessive prohibition as stipulated in Article 37(2) of the Constitution should be observed in order to prevent the violation of the Constitution of the Republic of Korea by imposing special charges, and it should not be imposed by comprehensive blank delegation as claimed by the Plaintiff.

(2) Whether the provisions of the law concerning the fund-raising are in violation of the Constitution

(a)The legal nature of the Culture and Arts Fund raising is not a tax, but a special charge, so it is not in violation of the principle of no taxation without the law under Article 59 of the Constitution. Moreover, it is merely an intermediate agent for whom the Plaintiff is obligated to collect and pay the Culture and Arts Fund from a cultural facility operator or a specific group that is not a person who rents the Culture and Arts Fund, and the Plaintiff is merely an intermediate agent who is obligated to collect and pay the Culture and Arts Fund from such a specific group. Thus, it is not in a position to assert a violation of the Constitution on the grounds of excessive prohibition or blank delegation.

The plaintiff asserts that the actual burden of special charges is not an individual who uses cultural facilities, but an operator of cultural facilities or a person who rents the cultural facilities. If the plaintiff operated the fare system in such a way, it shall be deemed that the plaintiff voluntarily renounces the method prescribed by the law and voluntarily bears the special charges without any legal cause. Thus, the plaintiff's assertion that the special charges are voluntarily borne and the burden is unlawful is one's own order.

(b)However, as the plaintiff, a person who acts as an agent for the fund-raising of literature and art fund bears the burden of carrying out the incidental business of fund-raising, which is enforced by law, rather than the original business, and if a spectator refuses to carry out the fund-raising for reasons of the fund-raising, he shall suffer disadvantages to the freedom of business to the extent that he suffers losses. However, since the law provides the fund-raising amount at least 2% of the admission fee, which shall be less than 10%, it shall not be deemed that there is a spectator who gives up the fee-raising service, and therefore, it shall not be deemed that there is an obstacle to the original business due to the execution of such incidental business.

(C) Lastly, Articles 19 and 19-2 of the Act provide that the upper limit of the collected amount is regulated by the law in relation to whether the provisions of the Act are in violation of the principle of prohibition of comprehensive delegation, and that the procedures for raising money are detailed in the law, it shall not be deemed that the requirements for imposing special charges and the scope of the collection are in violation of the principle of prohibition of comprehensive delegation. Article 19(1) of the Act provides that a fund-raising may be made with the approval of the Minister, "when the defendant deems it necessary," but this provision does not provide that when it is needed without regular collection, it shall be imposed only when it is approved by the Minister, and it shall not be interpreted as a provision delegated in blank to the defendant, instead of the provision of the law.

(d)Therefore, the plaintiff's assertion that Article 19 (b) of the Act is in violation of the Constitution cannot be seen as being in violation of the provision of Article 19-2 of the Act, and therefore, the defendant's disposition of this case cannot be viewed as an unlawful ground like the plaintiff'

6. Conclusion

The plaintiff's primary claim is dismissed as illegal, and the conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-tae (Presiding Judge)