[초과소유부담금부과처분취소][공1994.5.15.(968),1351]
A. Whether Article 3 subparagraph 1 of the Enforcement Decree of the former Act on the Ownership of Housing Site violates the mother law
B. Whether the mother law or the Constitution under paragraph (1) of the attached Table 1 of the same Decree is violated
C. Whether Article 3 of the Addenda to the same Act is unconstitutional
A. Article 3 subparagraph 1 (b) of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882, May 10, 1993) is merely a provision on the land to be excluded from a housing site among the land that is not a building site by delegation of Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites. It does not extend taxable objects without any delegation basis of the mother law or beyond the scope of delegation. Thus, Article 3 subparagraph 1 of the Enforcement Decree of the same Act does not constitute an invalid provision that violates the principle of no taxation without law.
B. In a case where the value of a building is less than 10/100 of the value of the building in question compared with the standard market price of the building and the standard market price of the land on which the building is constructed without distinguishing the use, etc. of the building from the former Enforcement Decree (amended by Presidential Decree No. 13882, May 10, 193) [Attachment 1] of the former Enforcement Decree of the Act on the Ownership of Housing Site, if the value of the building in question is less than 10/100 of the value of the building in question after simply comparing the standard market price of the building in question with the standard market price of the land on which the building is constructed, it shall not be deemed that the provision of other parts
C. Even if a housing site acquired prior to the enforcement of the Act on the Ownership of a Housing Site, if it is either disposed of two years after the enforcement date of the said Act, or is not used or developed as prescribed by the said Act, Article 3 of the Addenda of the said Act, which is subject to excess ownership, shall not be
A. (b) Article 2 subparag. 1(b) of the former Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 13882 of May 10, 1993), Article 3 subparag. 1(b) of the same Decree, Article 23(c) of the Constitution. Article 3 subparag. 1(b) of the same Decree, Article 3 of the same Decree, Article 3 of the Addenda to the Act on the Ownership of Housing Sites, Article 3(2) of the Constitution
A. Supreme Court Decision 93Nu18105 delivered on February 25, 1994 (Gong1994Sang, 1131). Supreme Court Decision 93Nu12916 delivered on October 12, 1993 (Gong193Ha, 3104)
[Judgment of the court below]
Head of Busan Metropolitan City Do;
Busan High Court Decision 93Gu1565 delivered on October 13, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
Article 3 subparagraph 1 (b) of the Enforcement Decree of the Act on the Ownership of Housing Sites (amended by Presidential Decree No. 1382 of May 10, 1993) is merely a provision on the land to be excluded from a housing site among the land which is not a site for a building by delegation under Article 2 subparagraph 1 (b) of the Act on the Ownership of Housing Sites (hereinafter referred to as the "Act"). It does not extend taxable objects beyond the scope of delegation or delegation without the delegation of the mother law. Thus, Article 3 subparagraph 1 of the Enforcement Decree of the same Act does not constitute an invalid provision that violates the principle of no taxation without law (see, e.g., Supreme Court Decision 93Nu18105, Feb. 25, 1994).
In addition, if the value of a building is less than 10/100 of the land value of the building constructed by comparison between the standard market value of the building and the standard market value of the land where the building is constructed without distinguishing the use, etc. of the building, it shall not be deemed that it violates the provisions of the law on the ownership of the mother corporation or the Constitution on the Guarantee of Property Rights, and it shall not be deemed that the other part is included in the housing site subject to the regulation of the law, without recognizing it as the land to be excluded from the housing site.
In addition, even if a housing site acquired before the enforcement of the Act, is disposed of within two years from the date of enforcement of the Act, or is not used or developed as prescribed by the Act, Article 3 of the Addenda to the Act, which is subject to excess ownership, shall not be deemed unconstitutional (see Supreme Court Decision 93Nu12916 delivered on October 2, 1993).
The judgment of the court below to the same purport is correct, and there is no error of law as pointed out in the theory of lawsuit. All arguments are without merit.
Therefore, the appeal 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 on the bench.
Justices Chocheon-sik (Presiding Justice)