The following facts are either not disputed between the parties, or acknowledged in light of the whole purport of the pleadings, and there is no counter-proof as to the entries in Gap evidence 5, 6, Eul evidence 13-1, 2, Eul evidence 1-1, 13, and Eul evidence 3.

가. 원고는 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지에 본점을 두고 있다가 1992. 11. 23.경 ㅇㅇ시 ㅇㅇ동 ㅇㅇ번지로 본점을 이전한 법인으로서, ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지. 대지 2,611㎡, 건물 10,408㎡(별지 제1과 같이 본관, 별관1동, 별관2동으로 구분되어 있다. 이하 이 사건 건물이라고 한다)에 관하여 1992. 11. 23. 소외 ㅇㅇ생명보험 주식회사에게 1991. 7. 24. 매매를 원인으로 한 소유권이전등기를 경료하였다.

B. With respect to the transfer of the instant building and its site, the Plaintiff revised the transfer value of KRW 32,850,700,000, KRW 29,414,337,502 with gains on transfer, and KRW 7,353,584,375 with the tax rate of KRW 25% as the special surtax amount, and KRW 7,353,584,375 with respect to the transfer of the instant building and its site, Article 42-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of December 30, 1989, before the full amendment by Act No. 4666 of December 31, 1993), Article 36-2 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12881, Dec. 30, 198; Presidential Decree No. 12874, Dec. 31, 1993).

C. On May 16, 1995, the Defendant issued the instant disposition imposing corporate tax of KRW 2,368,210,480 (Corporate tax of KRW 1,096,945,240 + KRW 1,271,265,240) on the ground that the Plaintiff and the lessee of the instant building jointly used the instant building, not directly used by the Plaintiff for business purposes, and that the size directly used by the Plaintiff is 3,474.52 square meters as shown in the attached Form, and thus, the Defendant imposed corporate tax of KRW 2,368,210,480 (corporate tax of KRW 1,271,265,240 + special surtax of KRW 1,265,240) on the following grounds:

Provisions of relevant Acts and subordinate statutes

In Article 42-2 (1) of the former Regulation of Tax Reduction and Exemption Act, the corporate tax and special surtax shall be exempted as prescribed by the Presidential Decree on the income accruing from the transfer of the site and buildings of the headquarters or principal office to relocate the headquarters or principal office to an area outside the Seoul Metropolitan area.

Under Article 36-2 (1) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, the calculation of the exempted tax amount under Article 42-2 (1) of the Act shall be based on the calculated tax amount on the exempted income ¡¿ (the total area of the buildings used directly by the relevant corporation for business / the total area of the buildings used or transferred for business) ¡¿ (the total amount used or transferred for any of subparagraphs of paragraph (5) / the proceeds from the disposal of the building site and the building). In applying the provisions of paragraph (2), the area directly used by the relevant corporation for business shall be the area when the relevant corporation is the smaller of the area directly used for

3. Plaintiff’s assertion and judgment

A. Whether Article 42-2 of the former Regulation of Tax Reduction and Exemption Act is unconstitutional

(1) The plaintiff's assertion

Article 42-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165, Dec. 30, 1989; Act No. 4666, Dec. 31, 1993; Act No. 4666, Dec. 31, 1993; Act No. 4266) applied by the Defendant provides that corporate tax and special surtax shall be exempted on any income accruing from the transfer of the site and buildings of the headquarters or principal office to relocate the headquarters or principal office to an area outside the Seoul Metropolitan area, and delegates in blank to the Presidential Decree on the existence and scope of liability to pay corporate tax and special surtax, as prescribed by the Presidential Decree, by prescribing that all citizens shall have the duty to pay taxes

Articles 38 and 59 of the Constitution provide that "The items and rates of taxes shall be determined by law," and the President may issue Presidential Decrees concerning the matters delegated by law, with the specific scope specified by law," are unconstitutional because they violate Article 75 of the Constitution."

In light of the above, the principle of no taxation without law adopted in Articles 38 and 59 of the Constitution refers to the requirements and procedures for the exercise of tax rights, such as taxation requirements and collection procedures, which are all stipulated by law enacted by the National Assembly, which is the representative body of the people. However, it is not possible to delegate the matters concerning taxation requirements and collection procedures to subordinate laws and regulations such as the order, rules, etc. However, if such matters are delegated to subordinate laws and regulations, only specific and individual delegation shall be allowed, and comprehensive and white land delegation shall not be permitted (tax-requirements statutory delegation), and the provisions of such laws, orders, rules, and regulations must be one-time and clear (tax-requirements clearness principle). The delegation of laws must be done with regard to specific and individual limited matters, and the specificness of the law should not be determined comprehensively, and the degree of such specification changes depending on the type and nature of the regulated object. Therefore, in the area such as corporate tax and special surtax, the scope of the reduction or exemption of the basic rights is somewhat weak, and the scope of the restriction of corporate tax and special surtax should be weak.

Article 42-2 of the former Regulation of Tax Reduction and Exemption Act seems to have been delegated to the Presidential Decree on the existence or scope of corporate tax and special surtax exempted under paragraph (1). Meanwhile, if a corporation exempted from corporate tax, etc. under paragraph (2) of the same Article falls under any of the following subparagraphs, it shall be regulated bypassing the existence or scope of corporate tax and special surtax exempted by listed in subparagraphs 1 through 5, and the provisions of paragraph (4) of the same Article shall apply to the case of submission of tax reduction and exemption, etc. under the conditions as prescribed by the Presidential Decree. In light of the whole, Article 42-2 of the former Regulation of Tax Reduction and Exemption Act provides for the specific scope of the existence or scope of corporate tax and special surtax exempted and special surtax and the procedure of exemption and delegates it to the Presidential Decree, which is a subordinate law. Thus, Article 42-2 of the former Regulation of Tax Reduction and Exemption Act cannot be deemed to violate the substantial principle of no taxation without law and the limit of delegated legislation under Article 38, 59 or 75 of the Constitution.

(1) The plaintiff's assertion

Article 36-2 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act applied by the defendant provides that "the area used directly by the corporation for business purposes" shall be "the area used directly by the corporation concerned for two years retroactively from the date of transfer", and "the area used directly for business purposes" shall be defined as "the area used directly by the corporation at the time when the corporation is smaller than the size used directly for business purposes". The determination is made in violation of Articles 23 and 59 of the Constitution to guarantee people's property rights and to prevent arbitrary taxation, such as violation of the universality principle, the principle of excessive prohibition, and the principle of response burden."

The legislative intent of Article 42-2 of the former Regulation of Tax Reduction and Exemption Act is to promote balanced regional development by promoting the relocation of the head office to an area outside the Seoul Metropolitan area, and to support the relocation of the head office so that the corporation transferring the site and building of the former head office can continue to operate the business even after the relocation of the head office by granting tax reduction or exemption benefits to the corporation which transfers the site and building of the head office in order to move the head office in the Seoul Metropolitan area. Therefore, it is reasonable that the scope of such tax reduction or exemption benefits should be commensurate with the economic and social interests that the corporation should maintain the head office in the Seoul Metropolitan area, and it is reasonable that the corporation should comply with the ratio of the area of the head office and the area directly used by the corporation for the business, because it is possible to change the area "the area directly used for the business" according to the situation and intention of the corporation in question, so it is not likely that it would violate the principle of tax equality, such as real estate speculation, and therefore, it seems that the corporation directly used the parking lot for the purpose of tax reduction or exemption.

(1) The plaintiff's assertion

Although the Plaintiff used the instant parking lot building exclusively in the exclusive and exclusive position as a warehouse, the Defendant imposed the instant disposition on the premise that the instant parking lot building was not used directly by the Plaintiff and the lessee of the instant building, and thus, the instant disposition was unlawful.

(2) Facts

그러므로 과연 원고가 이 사건 주차장건물을 업무용으로 사용하였는지의 여부에 관하여 보건대, 위 갑제6호증, 갑제7호증의 1 내지 8(을제2호증의 1 내지 8과 각 같다), 갑제8호증의 1 내지 10, 갑제9호증의 1 내지 17, 갑제10호증의 1 내지 11, 갑제11호증의 1 내지 3, 갑제15호증의 1, 2, 갑제16호증, 을제8호증, 을제9호증의 6의 각 기재, 증인 김ㅇ호, 홍ㅇ기, 한ㅇ명, 김ㅇ철, 김ㅇ우, 정ㅇ길의 각 증언, ㅇㅇ증권 주식회사, ㅇㅇ공업 주식회사, ㅇㅇ기공 주식회사, 주식회사 ㅇㅇ에 대한 각 사실조회결과에 변론의 전취지를 종합하면, 원래 이 사건 건물 중 별관1동은 용도가 실험실이었는데 1982. 12. 24. 증축 및 용도변경으로 1층은 창고로, 2층, 3층, 4층의 이 사건 주차장건물은 주차장으로 용도가 변경되었으나 원고는 늦어도 1989.경부터는 이 사건 주차장건물을 창고 등으로 사용하여 온 사실, 한편 원고는 이 사건 건물 중 상당한 면적을 소외 ㅇㅇ생명보험 주식회사 등 다수의 임차인들에게 임대하였으나 원고 및 임차인들이 이 사건 주차장건물을 주차장으로 사용하지는 아니한 사실, ㅇㅇ구청장은 1990. 말 원고가 이 사건 주차장건물을 창고 등으로 사용하고 있음을 적발하고 1990. 11. 27.과 1990. 11. 29. 2회에 걸쳐 본래의 용도인 주차장으로 유지관리하라는 지시를 하였고 이에 원고가 1990. 12. 6. 주차장으로 시정하였다고 보고하였으며, 위 보고가 사실과 다른 것을 적발한 ㅇㅇ구청장은 1991. 3. 28.과 1991. 7. 12. 2회에 걸쳐 이 사건 주차장건물을 본래의 용도인 주차장으로 유지관리하라는 시정지시를 하였고, 이에 원고가 1991. 4. 23.과 1991. 8. 1. 주차장으로 시정하였다고 보고한 사실, 한편 원고와 원고의 총무과장으로서 이 사건 건물의 관리책임자이던 소외 김ㅇ중은 1992. 3. 11. ㅇㅇ지방법원으로부터 원고가 1991. 6. 15. 경부터 1991. 7. 20. 경까지 이 사건 주차장건물을 주차장외의 용도인 창고로 사용하였다는 범죄사실로서 각 벌금 500만원의 약식명령을 고지받은 사실을 각 인정할 수 있고, 이에 반하여 1991. 8. 1. 이후에도 원고가 이 사건 주차장건물을 창고로 사용하였다는 취지인 증인 길ㅇ근, 김ㅇ중의 각 증언은 믿지 아니하고 달리 반증 없다.

(3) Determination

If the Plaintiff used the instant parking lot building for an illegal exclusive use as mentioned above, it should be corrected at any time as the object of the corrective order, so it is difficult to use it for business purposes even in such a case.

Therefore, the Plaintiff cannot be deemed to have used the instant parking lot building directly for business purposes from August 1, 1991 to November 23, 1992, which is the date of transfer. Therefore, the Defendant’s disposition of this case that deemed that the Plaintiff did not directly use the instant parking lot building for business purposes is lawful, and the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case seeking its revocation is unlawful, and it is dismissed, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.

December 23, 1997