B. Whether the retroactive effect of a decision of unconstitutionality can be limited for legal stability and protection of parties' trust

(c) The case holding that the successful bid price which the State received on the basis of the unconstitutional portion cannot be claimed as unjust enrichment before a decision of unconstitutionality as to Article 35 (1) 3 of the former Framework Act on National Taxes

B. The effect of the decision of unconstitutionality cannot be limited to an indefinite scope, and even if the court does not apply the provisions of the law or the provisions of the law decided as unconstitutional, it does not deny that the retroactive effect is limited by other legal principles. It would rather be necessary to restrict the retroactive effect of the decision of unconstitutionality when it is inevitable to maintain legal stability or to protect the trust of the parties.

C. The case holding that, prior to the decision of unconstitutionality as to Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990), the successful bid price which the State received based on the unconstitutional part cannot be claimed as unjust enrichment.

(1) The purport of the Plaintiff’s claim in this case is that in the auction procedure of the real estate acquired by the Plaintiff over 89Hun-Ga95 on September 3, 1990, national taxes should be collected in preference to claims secured by the right of lease on a deposit basis, the right of pledge, or the right of mortgage established within one year prior to the due date. Article 35(1)3 of the former Framework Act on National Taxes (No. 2769 of Dec. 21, 197) provides that “one year from the right of lease on a deposit basis, the right of pledge, or the right of mortgage” is in violation of the Constitution. The Defendant Republic of Korea, prior to the decision of unconstitutionality, has issued the above decision of unconstitutionality, provided that the Plaintiff received national taxes equivalent to the above real estate after the due date of payment due date under the provision of the Framework Act on National Taxes and returned the Plaintiff’s legal benefit without any legal cause and gain.

(2) As to this issue, Article 47(2) of the Constitutional Court Act adopts the so-called future filial duty that the law or provision of the law decided as unconstitutional unless it relates to punishment, shall lose its validity in the future from the date on which such decision was made. However, as an exception to the future filial duty principle, the pertinent case which requested the Constitutional Court to adjudicate on the unconstitutionality of the law before the decision of unconstitutionality was made, or the case which requested the court to adjudicate on the unconstitutionality of the law before the decision of unconstitutionality was made, is not subject to a request for an adjudication on the unconstitutionality of the law. However, in light of the effectiveness of specific norm control as to the pertinent case which is pending in the court as a premise of the decision of unconstitutionality, there is no possibility that the above provision would infringe on the legal stability of the party, while recognizing the retroactive effect, and thus, it is more likely that the above provision would not be applied to the court prior to the determination of unconstitutionality of the law before the decision of unconstitutionality of the Act.

(3) The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the Constitutional Court made a request for adjudication of unconstitutionality or made a request for adjudication of unconstitutionality before the decision of unconstitutionality, but it was not applied separately to the case in which the Constitutional Court made a request for adjudication of unconstitutionality or made a request for adjudication of unconstitutionality before the decision of unconstitutionality, but also to the case in which the relevant law or provision of law is pending in the court as a premise of judgment and has been filed for the above reasons after the decision of unconstitutionality. However, the effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the above reasons are brought for the above reasons (see Supreme Court Decision 92Da12377 delivered on January 15, 1993; Supreme Court Decision 91Nu5747 delivered on the same day; Supreme Court Decision 93Da3783 delivered on July 16, 1993, and even if the court did not apply the law or the provision of law decided unconstitutional.

Although there are some deficiencies in the reasoning of the court below, the decision of the court below is just and just, and it is also justified in the decision of the court below that the retroactive effect of the above decision of unconstitutionality does not reach this case, and it is not erroneous in the misapprehension of legal principles as to the issue of legal stability, such as the theory of lawsuit, or in the light of the basic guarantee of human rights. Although there is no part of the argument of the lawsuit, it is difficult to see that the argument of the court below is appropriate to be invoked in this case. The argument of the lawsuit is without merit.

(4) Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)