[토지초과이득세부과처분취소][공1996.8.1.(15),2246]
[1] Whether an administrative disposition based on the law becomes void automatically before a decision on the constitutionality of the law is made (negative)
[2] The case holding that the detailed and disposition of land excess profit based on the provisions of Article 4 (5) of the former Land Excess Profit Tax Act, which has been decided as unconstitutional, shall not be null and void as a matter of course
[1] If the Constitutional Court decides the law as unconstitutional after an administrative agency made an administrative disposition based on the law, it shall be deemed that the administrative disposition is identical to that made without the basis of the law. However, in order for a defective administrative disposition to be null and void as a matter of course, the defect must be serious, and it must be apparent. In general, the circumstance that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court made a decision of unconstitutionality. Thus, it is reasonable to deem that such defect is only a ground for revocation of the above administrative disposition, and it does not constitute a ground for invalidation.
[2] The case affirming the judgment of the court below that the taxation authority imposed the land excess profit tax on the ground that the taxpayer succeeded to the tax obligation for the land excess profit accrued prior to the date of acquiring the land from the former owner under Article 4 (5) of the former Land Excess profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994), on the ground that the taxation authority imposed the land excess profit tax on the former owner without any legal basis pursuant to the new Land Excess Profit Tax Act, is unlawful. However, pursuant to Article 4 (5) of the former Land Excess Profit Tax Act, the provisions of Article 4 (5) of the former Land Excess Profit Tax Act cannot be deemed to have been objectively evident from the fact that the provisions of the former Land Excess Profit Tax Act are unconstitutional, and thus, it can be deemed to have been a ground for revocation, but it cannot be deemed to be a ground for the rightful invalidation.
[1] Article 47 of the Constitutional Court Act, Article 19 of the Administrative Litigation Act / [2] Article 47 of the Constitutional Court Act, Article 19 of the Administrative Litigation Act, Article 4 (5) of the former Land Excess Profits Tax Act (amended by Act No. 4807 of Dec. 22, 1994)
[1] Supreme Court Decision 92Nu9463 delivered on October 28, 1994 (Gong1994Ha, 3139), Supreme Court Decision 93Da41860 delivered on October 28, 1994 (Gong1994Ha, 3109), Supreme Court Decision 92Da55770 delivered on March 3, 1995 (Gong195Sang, 155Sang, 1550) Supreme Court Decision 95Da39137 delivered on December 5, 195 (Gong196Sang, 206)
Plaintiff (Attorney Lee Jong-chul et al., Counsel for plaintiff-appellee)
The director of the North Incheon National Tax Office
Seoul High Court Decision 94Gu27412 delivered on December 14, 1995
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal (including the statement of the supplemental appellate brief) are examined.
If the Constitutional Court, after an administrative disposition was rendered based on the law, decided that the law was unconstitutional, the administrative disposition would have become the same as that taken place without any legal basis. However, if the defective administrative disposition was to be null and void as a matter of course, the defect must be serious, and it must be obvious. In general, the circumstance that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court renders a decision of unconstitutionality, and barring any special circumstance, it is reasonable to deem that such defect constitutes a ground for revocation of the above administrative disposition, and it does not constitute a ground for invalidation as a matter of course (see, e.g., Supreme Court Decisions 92Nu9463, Oct. 28, 1994; 95Da39137, Dec. 5, 1995).
According to the reasoning of the judgment below, the court below deemed that the plaintiff succeeded to the tax liability of the land excess profit tax corresponding to the taxable period prior to the acquisition of the land in this case (hereinafter referred to as "soil tax"), and held that the disposition of this case, which imposed the first tax due to the holding of the land in this case, is null and void a year. In the case where the ownership of the land in this taxable period is transferred during Article 4 (5) of the former Land Excess profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994; hereinafter referred to as the "former Land Excess Profit Tax Act"), the new Land Excess Profit Tax Act (hereinafter referred to as the "new Land Excess Tax Act") provides that the transferee shall succeed to the tax liability for the land excess profit corresponding to the tax period prior to the acquisition of the land in this case, and therefore, it cannot be deemed that the new tax law provisions of this case were unlawful as it did not constitute a violation of the new tax law of this case, and thus, it cannot be viewed that the new tax law provisions of this case were unlawful.
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 Lee Jae-soo (Presiding Justice)