2. The costs of lawsuit shall be borne by the Plaintiff.

A. The Plaintiff’s ○○○ Metropolitan City ○○○-ro 68 ○○-ro 1, 4, and 7 (○○-dong) out of ○○○-ro

It is a person who operates a hospital under the trade name of the medical clinic.

B. On October 19, 2017, the director of a regional tax office ○○ (the director of a regional tax office on January 1, 2014) is as follows:

Article 15(1) of the former Punishment of Tax Evaders Act (amended by Act No. 12169, Dec. 31, 2018; hereinafter the same shall apply) (amended by Act No. 12169; hereinafter the same shall apply) (amended by Act No. 1623; hereinafter the same shall apply) and Article 162-3 of the Income Tax Act (amended by Act No. 16108; hereinafter referred to as "the first notification of the fine for negligence of this case") (hereinafter referred to as "the first notification of the fine for negligence of this case") on the ground that the Plaintiff violated its obligation to issue cash receipts under Articles 162-3 and 162-3 of the Income Tax Act (amended by Act No. 12169; hereinafter the same shall apply).

C. On October 20, 2017, the director of the regional tax office, on the ground that the Plaintiff violated the obligation to issue cash receipts under Article 162-3 of the Income Tax Act, the director of the regional tax office rendered a prior notice of the imposition of the fine for negligence under the instant legal provision (hereinafter “the second notice of the fine for negligence”) to the Plaintiff.

- 위반행위일 : 2015. 7. 2. ˜ 2016. 12. 31.

- Details of violation: Violation of obligation to issue Cash Receipts

-Amount of fine for negligence: 1,101,212,500 won

(Time limit of payment within the submission of opinions: 880,970,000 won)

- Calculation Basis: 50/100 of the transaction amount for which cash receipts have not been issued, 202,425,000 won;

D. On November 6, 2017, the date for submitting the opinion specified in the notice of the fine for negligence Nos. 1 and 2, the Plaintiff paid the Defendant a total of KRW 2,146,634,80 (i.e., the fine for negligence in accordance with the notice of the fine for negligence No. 1) + KRW 1,265,664,80 according to the notice of the fine for negligence No. 2,80,000 according to the notice of the fine for negligence No. 1,265,664,00; hereinafter the same shall apply

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

As examined below, the legal provision of this case violates property rights and freedom of occupation, violates the principle of responsibility, and is unconstitutional. It is unconstitutional that the discretion of the judge is excessively restricted in the determination of the sentencing, and is in violation of the principle of tax equality. The plaintiff paid the fine for negligence of this case to the defendant based on the notification of the fine for negligence of this case 2,146,634,80. As long as the legal provision of this case is null and void, the notification of the fine for negligence of this case 1 and 2 is null and void. As long as the legal provision of this case is null and void, the fine for negligence of this case is the amount paid to the defendant without any legal ground. Accordingly, the defendant is obliged to pay the plaintiff the above 2,146,634,80

A) Infringement of property rights and freedom of occupation

This case’s legal provision limits the business owner’s property rights and freedom of business that is obliged to issue cash receipts by uniformly imposing a fine for negligence. However, in addition to the fine for negligence under the instant legal provision, it is excessive to limit the scope of restriction to impose a fine for negligence equivalent to 50% of the unissued transaction price under the instant legal provision, and it is an alternative to open the possibility of reduction and exemption by stipulating that the same business owner should be subject to a fine for negligence, which is imposed without any limit on the unissued amount, in addition to the fine for negligence under the instant legal provision, as well as the global income tax, local income tax, value-added tax, additional tax, and fine for negligence. In addition, the instant legal provision also violates the minimum level of infringement, since there is an alternative to place the possibility of reduction and exemption by replacing the tax less restrictive amount than the fine for negligence, or the amount of the fine for negligence is not more than 50% of the amount of the fine for negligence.

B) Violation of the principle of responsibility and violation of the judge's discretionary power to impose punishment

The legal provision of this case is against the principle of liability and infringes upon the discretion of the judge to determine the sentencing of a judge because it is difficult to impose an administrative fine of 50% uniformly without any room for reduction solely on the basis of unissued amount without considering individual circumstances.

C) Violation of tax equality

Administrative fines have functions similar to additional taxes, and there is a provision that reduces the amount of administrative fines according to specific circumstances, such as filing a revised return or filing a revised report after the due date, without imposing additional taxes. However, the pertinent provision does not have any such provision, and even if cash receipt was issued after the due date due to mistake or negligence but it was issued after the due date, it is inevitable to impose a uniform administrative fine equivalent to 50% of the amount issued without taking account of such ex post facto circumstances. This may result in a significant violation of equity among the violators.

2) The defendant's assertion

The legal provision of this case is to contribute to the training of tax base by transparently exposing cash transactions by high-income professional business operators, etc. in the blind spot of taxation, and it cannot be deemed unconstitutional, such as the realization of a fair society, legitimacy of the legislative purpose of fostering underground economy, and suitability of the means of fostering underground economy, and thus, the administrative fine of this case paid by the Plaintiff does not constitute unjust enrichment.

B. Determination

1) Relevant statutes

The provisions of the law related to this case shall be as shown in the attached Form.

2) Whether the legal provisions of this case are unconstitutional

A) Whether the principle of excessive prohibition is violated

(1) Limited fundamental rights

The legal provision of this case imposes an obligation to provide goods or services at least 300,000 won for each transaction (from July 1, 2014, the enforcement date of Article 162-3(4) of the Income Tax Act) and at least 100,000 won (from July 1, 2014, the enforcement date of Article 162-3(4) of the Income Tax Act) and to issue them even if the other party does not request the issuance of cash receipts in cash, and imposes an administrative fine if the other party violates the above provision, which restricts the Plaintiff’s property right and freedom to perform his occupation. Accordingly, the legal provision of this case limits the Plaintiff’s freedom to whom the business is obligated to issue cash receipts, as well as the Plaintiff’s property right and freedom to perform his occupation.

(2) The legitimacy of legislative purpose and the suitability of the means

If cash receipts are not issued in cash in the transaction of goods or services, it is very difficult for the National Tax Service to decide whether to evade tax from the standpoint of the National Tax Service, unless the business operator reports the fact of transactions by himself/herself. Therefore, the business operator is preferred to make payments by cash rather than credit cards, and the act of inducing cash settlement without issuing actual cash receipts is significantly promoted. The legal provision of this case aims at preventing tax evasion and establishing fair trade order by training tax base for high-income professional business operators, etc.

In addition, if an entrepreneur of the business category obligated to issue cash receipts supplies goods or services with at least 30,000 won per transaction, or 100,000 won per transaction, and receives the price in cash, the obligation to issue them even if the other party does not request the issuance of cash receipts, and imposing an administrative fine equivalent to at least 50% of the non-issuance amount of cash receipts upon the issuance of cash receipts can be an effective

(3) The minimum extent of the infringement

(A) Administrative fines are administrative order punishment for the maintenance of administrative order as one of the means of securing the effectiveness of administration, and if it is deemed that the violation of administrative laws and regulations does not directly or indirectly infringe administrative purposes or the public interest, and it is deemed that such violation is a simple violation of administrative order to the extent that it is likely to indirectly interfere with administrative order

1) The Plaintiff asserts that the date or gravity of the administrative fine sanctions prescribed in the legal provisions of this case violates the principle of responsibility and the principle of tax equality, and that the court cannot make a judicial judgment based on the specific circumstances of the offender, thereby infringing on the judge’s discretionary power to impose an administrative fine. However, the above argument is eventually only a uniform rate of administrative fine prescribed in the legal provisions of this case, and thus, it is determined as included in the part on the violation of the principle of excessive imposition.

The issue of whether to impose an administrative fine, which is an administrative order punishment, solely on an indirect violation of an administrative law, or whether to impose an administrative fine by deeming it as an act that directly infringes on the administrative purpose and public interest, is basically a matter belonging to the legislative discretion of the legislator, taking into account the overall circumstances into account. In addition, if the legislators, at their discretion, make a legislative decision to impose an administrative fine, which is an administrative order punishment, by imposing an administrative order punishment, on the legislative discretion, the amount of the administrative fine is also deemed to fall under the legislative discretion. However, if the amount of the administrative fine is remarkably exceeded necessary to enforce the responsibility for breach of duty, and the amount of the fine is excessively excessive to the extent that the amount of the administrative fine is not unreasonable compared with the offender of other administrative regulations, the restriction

The legal provision of this case is obligated to issue cash receipts for a certain amount of cash transaction by a certain high-income professional business operator, etc., and the method of imposing sanctions against this is to select a fine for negligence, which is an administrative order punishment, the degree of which is weak than the administrative punishment. Therefore, such choice itself cannot be deemed to violate the minimum principle of infringement.

또한, 이 사건 법률조항은 현금영수증 의무발행업종 사업자의 모든 현금거래에 대하여 적용되는 것이 아니라 탈세의 유인이 큰 거래건당 30만 원 이상 또는 10만 원 이상의 고액 현금거래에 대하여만 적용되는 것으로 범위를 한정하고 있다. 그리고 과태료 액수를 현금영수증 미발급액의 50%에 상당하는 금액으로 정하고 있는바, 이는 고소득 전문직 사업자 등은 실제 35% 내지 38%의 종합소득세 세율을 적용받는 경우가 많고, 여기에 10%의 부가가치세 세율 또한 적용된다는 점을 감안할 때, 그러한 세액에 상응하게 과태료 액수가 정해져야만 고소득 전문직 사업자 등의 탈세유인을 사전에 차단함과 동시에 현금영수증제도의 실효성을 두텁게 확보할 수 있게 된다. 그리고 조세포탈의 경우에는 정상에 따라 징역형과 함께 포탈세액의 2˜3배 이하에 상당하는 벌금이 병과될 수도 있다는 점을 보태어 보면(조세범 처벌법 제3조 제1항, 제2항), 이 사건 법률조항의 과태료 부과금액이 의무위반의 책임을 추궁하는 데 필요한 정도를 현저히 넘어서거나 불합리하게 과중하다고 볼 수는 없다.

(B) The instant legal provision is evaluated to have contributed to raising tax bases for self-employed business operators by transparently exposing cash transactions of high-income professional business operators, etc. in the blind spot of past taxation. From the perspective of realizing a fair society and fostering underground economy, at the settlement stage of the cash receipt system, there is a need for uniform and clear sanctions in order to ensure that high-income professional business operators and prevent their tax evasion.

The uniform imposition rate of fines for negligence, which is 50% of the non-issuance amount of cash receipts, is set flexibly in proportion to the amount of transaction without any upper limit, and thus, it is more reasonable to impose sanctions corresponding to the profits to be earned by the business operators obliged to issue cash receipts due to non-issuance of cash receipts, and to set the upper limit of fines for negligence. If the rate of fines for negligence or the amount of fines for negligence may vary according to the discretion of an administrative agency, another problem may arise. Moreover, the act of non-issuance of cash receipts itself may not be deemed to have a big difference in the motive and manner of the violation, the circumstances and methods of the violation, and the degree of illegality due to the latter circumstances. Therefore, it is difficult to readily conclude that the legal provision of this case is an excessive restriction solely on the ground that the pertinent amount of fines for negligence is set at the uniform rate of 50% of the non-issuance amount of cash receipts in case of violation.

(C) The legal provision of this case does not impose a fine for negligence on all business operators in violation of the obligation to issue cash receipts, but, in particular, it limits the scope of the obligation to issue cash receipts to the category of business with high possibility of income evasion due to a large amount of cash transactions. In other words, since the beginning of the introduction of the Cash Receipt System, the object of the obligation to issue cash receipts is limited to attorneys-at-law business, such as accounting business, which is highly likely to cause high amount of cash transactions, health business such as sick and Medical Workers, general teaching institutes, golf courses, etc., and it is currently subdivided into business services, public health business, lodging and restaurant business, educational service business, and other business, and it is only a new type of business that has many large amount of cash transactions such as visual and precious metal retail business, and

In addition, a business operator obliged to issue cash receipts may enter credit cards, resident registration numbers, cell phone numbers, etc., which can identify consumers immediately after having transacted more than a certain amount of cash, and issue cash receipts generated real-time through a device with a cash receipt issuing device. Therefore, it cannot be said that the procedure is difficult, and it does not require much time and cost to issue cash receipts.

On the other hand, if the other party does not request issuance of cash receipts, an entrepreneur obligated to issue cash receipts may issue cash receipts in an indefinite name within five days from the date of cash receipt (Article 210-3(10) of the Enforcement Decree of the Income Tax Act). As can be seen, for example, there is a measure to be taken when the issuance of cash receipts is delayed due to an inevitable circumstance such as a temporary breakdown or a temporary breakdown of cash receipt issuing devices. In addition, even if an entrepreneur obligated to issue cash receipts refuses to issue cash receipts due to the characteristics of the customer, the entrepreneur refuses to issue cash receipts.

Cash Receipts may be issued.

(D) Even an entrepreneur of the business category obligated to issue cash receipts may choose not to issue cash receipts when supplying goods or services to the business operator, and delivering a tax invoice (proviso of Article 162-3(4) of the Income Tax Act). This is because the tax invoice is a document evidencing the output tax amount to the entrepreneur who supplies the goods or services among the business operators, and the tax invoice is a document evidencing the input tax amount to the person who receives the goods, and it is unlikely that the tax data will

In addition, the penalty tax (5% of the amount not issued) under the Income Tax Act shall not be imposed on a person subject to an administrative fine under the provisions of the administrative fine (the former Punishment of Tax Evaders Act).

Article 15(3) of the Income Tax Act (Article 81(1)1 of the Income Tax Act). If a Cash Receipt was issued but the Cash Receipt was issued differently from the fact, an additional tax shall not be imposed (5% of the amount issued differently from the fact). If an ordinary entrepreneur, other than a senior income specialist, refuses to issue Cash Receipt or issues it falsely (5% of the amount issued differently from the fact).

subsection 2 of this paragraph).

Meanwhile, as a means to secure the collection of principal tax, the penalty tax is different from the fine for negligence, which is an administrative order, in that its form is tax, and even if its substance is similar, it cannot be said that the penalty tax reduction and exemption provision (Article 48 of the Framework Act on National Taxes) should not be applied as it is even to the fine for negligence. In the case of mandatory issuance of cash receipts, it is because there is a lot of single-time transactions against many unspecified consumers, and there is little need to reduce or exempt the penalty tax depending on specific circumstances such as penalty tax

(E) In order to protect the rights and interests of the people, the Act on the Regulation of Violations of Public Order stipulates matters concerning the requirements for establishing violations of public order and the imposition, collection, and trial of fines for negligence (Article 1). For example, various general provisions apply to the judgment of fines for negligence by the enforcement of the same Act. For example, neither intentional nor negligent nor a person who has no capacity to recognize or assume responsibility for illegality (Articles 7, 8, and 9), nor a fine for negligence shall be imposed on a person with mental or physical disorder

When imposing a fine for negligence due to a violation of the obligation to issue cash receipts, the parties shall be notified of the grounds for the imposition of the fine for negligence and other matters necessary for the imposition of the fine for negligence, and shall be given an opportunity to present their opinions (Article 16 of the Act on the Regulation of Violations of Public Order). Article 18 of the Enforcement Decree of the Act on the Regulation of Violations of Public Order, Article 5 of the same Act, and Article 7(5) of the Punishment of Tax Evaders Act provides that the fine for negligence shall be reduced by 20 percent (Article 18 of the Act on the Regulation of Violations of Public Order, Article 5 of the Enforcement Decree of the same Act, and Article 7(5) of the Punishment of Tax Evaders Act).

Article 7 (6) of the Punishment of Tax Offenses Act.

(F) As such, in order to prevent tax evasion of high-income professional employees and to secure their effectiveness, it is inevitable to impose a fine for negligence corresponding to the mandatory issuance of cash receipts in certain cases, and to diversify the methods in the timing and method of issuing cash receipts, and to provide for reduction of and exemption from fines for negligence, the instant legal provision does not violate the minimum principle of infringement.

(4) Balance of legal interests

The legislative purpose of the instant legal provision is to establish transparent and fair trade order and to train the tax base for the category of business with a large amount of cash transactions such as high-income professional business operators. Such public interest is very significant and important. On the other hand, the instant legal provision’s private interest restricted by the Plaintiff due to the instant legal provision is to enter the mobile phone number, etc. of the other party into the cash receipt issuance device and output and issue cash receipts without additional fees when cash transactions amount to at least KRW 300,000,000 or more than KRW 100,000,000, and as such, the costs, time, and effort necessary for the performance of the obligation is very insignificant, and administrative fines imposed upon the breach of the duty are also to the extent

Ultimately, the public interest pursued by the legal provisions of this case is suffered by the entrepreneurs of the business that is obligated to issue cash receipts

Since the benefit and protection of the law is much larger than that of the disadvantage, the balance of the benefit and protection is recognized.

B) Sub-determination

Therefore, the legal provision of this case cannot be deemed to infringe the plaintiff's property right and freedom of occupation in violation of the excessive prohibition principle, and it does not violate the Constitution since the plaintiff's unconstitutionality is not recognized (see Constitutional Court Decision 2013HunBa56, Jul. 30, 2015).

3) Determination as to the claim for return of unjust enrichment

As seen earlier, insofar as the legal provision of this case cannot be deemed unconstitutional and invalid, the prior Plaintiff’s claim for return of unjust enrichment on a different premise is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.