[택지초과소유부담금부과처분취소][공1993.12.1.(957),3104]
Whether Article 19 (1) of the Act on the Ownership of Housing Sites violates Article 13 (2) of the Constitution
Article 19 subparag. 1 of the Act on the Ownership of Housing Sites provides that a person who owns a housing site prior to the enforcement of the same Act may impose a charge on a housing site exceeding the upper limit of possession by a household. Meanwhile, Article 3(1) of the Addenda provides that a person who owns a housing site prior to the enforcement of the Act shall be able to dispose of or use and develop the housing site exceeding the upper limit area within the given period and escape from the sanctions for imposition of the charge, by suspending the imposition of the charge for a considerable period of two years prior to the enforcement of the Act. In addition, Article 31 of the same Act provides that a person liable for the payment of the charge may request the Minister of Construction and Transportation to purchase the relevant housing site in accordance with the provisions of Article 31 of the same Act, if he/she wishes to do so, the said Act provides that a person who owns a housing site prior to the enforcement of the Act shall be able to impose the charge on a person who owns the housing site prior to the enforcement of the same Act, thereby violating the principle of prohibition under Article 19(2) of the Constitution.
Article 19 subparagraph 1 of the Act on the Ownership of Housing Sites, Article 3 (1) of the Addenda, Article 13 (2) of the Constitution
[Defendant-Appellee] Plaintiff 1
The head of Jongno-gu Seoul Metropolitan Government
Seoul High Court Decision 93Gu2553 delivered on April 28, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
The Act on December 31, 1989 enacted by Act No. 4174 of Dec. 31, 1989 (hereinafter referred to as the “Act”) provides that the purpose of this Act is to ensure the stability of the residential life of the people by inducing the people to evenly own a housing site and by facilitating the supply of a housing site (Article 1). As one of the methods to achieve that purpose, the Act imposes excess ownership charges (hereinafter referred to as “charges”) on a housing site that is owned in excess of the upper limit prescribed by the Act.
In addition, Article 19 subparag. 1 of the Act provides that one of the subject matters of charges shall be deemed as one of the days subject to the imposition of charges for each household, and the Act provides that in principle, a person who owns a housing site prior to the enforcement of the Act shall be entitled to impose charges for each household in excess of the upper limit on the ownership of each household (Article 1 of the Addenda). However, Article 3(1) of the Addenda provides that “The charges for a housing site falling under the provisions of any of the subparagraphs of Article 19 at the time this Act enters into force shall not be imposed within two years from the enforcement date of this Act in order to guarantee the people’s vested property rights in the housing site prior to the enforcement date of the Act. If charges are imposed after the lapse of two years, the date after the lapse of the two years shall be deemed as one falling under any of the subparagraphs of Article 19, whichever comes into force after the enforcement date of the Act, so that the Minister of Construction and Transportation may impose charges for the use and development of the housing site exceeding the upper limit within the period of two years from the enforcement date of the Act.
Therefore, Article 19 subparag. 1 of the Act provides that a person who owns a housing site prior to the enforcement of the Act can also impose charges on him/her. Thus, the provision of Article 19 subparag. 1 of the Act cannot be deemed null and void because it violates the principle of prohibition of retroactive legislation under Article 13(2) of the Constitution. The Defendant’s disposition imposing charges in this case, which was made pursuant to the provision of the Act, also violates the principle of prohibition of infringement of private property rights by retroactive legislation, the principle of prohibition of tax non-payment, or the principle of non-payment of administrative
The decision of the court below to the same purport is correct, and there is no illegality as pointed out in the theory of lawsuit. The arguments are groundless.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)