2. The disposition of imposition by the defendant (the defendant) on January 1, 2008 against the plaintiff (the plaintiff on January 1, 2008) is revoked.

3. The total cost of the lawsuit shall be borne by the defendant (the defendant for retrial).

Purport of claim, purport of request for retrial and purport of appeal

It is so decided as per Disposition.

A. Status of Plaintiff (Plaintiff) and imposition of inheritance tax

1) On June 13, 2005, the deceased NoB (hereinafter referred to as “the deceased”) died on June 13, 2005, and the wife of the Plaintiff (hereinafter referred to as “Plaintiff”) and the TradeCC and NoDD jointly succeeded to the deceased’s property.

"2) On December 12, 2005, the plaintiff and NoDD (hereinafter referred to as "the plaintiff, etc.") filed a return on the tax base of inheritance tax by applying the OOOO of the spouse deduction amount to the defendant, and the plaintiff, etc. filed a return on the non-division of inherited property on the ground that there is an inevitable reason that the inheritance could not be divided as a result of a lawsuit between the inheritors." (iii) The defendant (the defendant for review; hereinafter referred to as "the defendant") filed a return on the non-division of inherited property. As a result of the tax investigation of inheritance on the deceased's inherited property from May 9, 2007 to July 8, 2007, the former Inheritance Tax and Gift Tax Act (amended by Act No. 7580, Jul. 13, 2005; hereinafter referred to as "former Inheritance Tax and Gift Tax Act") under the proviso to Article 19 (2) of the Inheritance Tax and Gift Tax Act, instead of the plaintiff's spouse's O and others.

B. The plaintiff et al. filed a revocation suit and the judgment on the instant disposition

1) The plaintiff et al. filed a petition for trial on October 16, 2008. However, the plaintiff et al. filed a petition for revocation of the disposition of this case (limited to the case subject to review of the Seoul Administrative Court 2009Guhap1723, hereinafter referred to as "case subject to review"). The plaintiff et al. filed an application for adjudication of unconstitutionality (Seoul Administrative Court 2009Guhap717) on the grounds that Article 19 (2) of the former Inheritance Tax and Gift Tax Act (hereinafter referred to as "the legal provision of this case") during the continuation of the case subject to review violates the principle of equality under Article 11 of the Constitution, but at the same time the decision of dismissal was received from the above court on June 25, 2009, and the decision of dismissal was pronounced as to the case subject to review. The plaintiff et al. appealed appealed, but the appeal was withdrawn on November 6, 2009, and the judgment subject to review became final and conclusive as it is.

2) Meanwhile, the Plaintiff et al. filed a constitutional complaint (the Constitutional Court 2009Hun-Ba190) on the legal provisions of the instant case based on Article 68(2) of the Constitutional Court Act, upon receipt of a decision to dismiss an application for the proposal of unconstitutionality, and the Constitutional Court decided on December 31, 2012, which was the time limit for amendment on May 31, 2012, and rendered a provisional decision of inconsistency with the Constitution on the legal provisions of the instant case.

C. Judgment on division of inherited property between the Plaintiff, etc.

1) On February 6, 2009, the Plaintiff et al. filed a claim against Norway for a trial on the division of inherited property (Seoul Family Court 2006Dhap140) and a trial on the contributory portion (2007Dhap6). On February 6, 2009, the Seoul Family Court dismissed the Plaintiff et al.’s claim for the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement, and the appeal (Seoul High Court 2009B37) was filed on February 8, 2011, the Plaintiff divided the real estate indicated in the attached Table 1, 5, 6, and 7 from Seoul High Court on February 8, 2011 into the possession of the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement by the entitlement to the entitlement to the entitlement to the entitlement to the entitlement.

2) On July 7, 2011, the Plaintiff completed the registration of ownership transfer with respect to the partitioned real estate on the ground of division of inherited property.

D. Constitutional Court's ruling of inconsistency with Constitution

On the other hand, with respect to the above constitutional complaint case (the Constitutional Court Decision 2009Hun-Ba190, May 31, 2012), the legal provision of this case has a legitimate legislative purpose to prevent a spouse of an inheritee from attempting to transfer inherited property without compensation by means of transferring inherited property after the inheritance deduction was granted to the inheritor and to early determine the relationship of tax law with respect to inheritance tax. However, if there are unavoidable circumstances where it is difficult to complete division of property within the statutory due to the existence of substantive dispute over inheritance, such as the adjudication on division of inherited property, the decision of inconsistency with the Constitution should not be opened to reflect the result of the adjudication in calculating inheritance after the statutory due to the subsequent request for correction after the lapse of the above period in a lump sum, thereby infringing the claimant's property rights by denying the spouse inheritance deduction, and further, it is identical to the inheritor who was unable to complete division of inheritance within the statutory period due to inevitable reasons such as the continuation of litigation, and thus, it does not conform with the Constitution, and thus, the law of this case should be amended to the unconstitutional decision of inconsistency with the Constitution.

[Reasons for Recognition] Gap evidence Nos. 1, Gap evidence Nos. 4 through 11, Eul evidence Nos. 1 through 7 (including branch numbers), and the purport of the whole pleadings

2. Existence of grounds for retrial

Article 75(7) of the Constitutional Court Act provides that “In a case where a constitutional complaint is accepted pursuant to Article 68(2), the parties may file a petition for a retrial if a litigation case related to a source of the relevant Constitution becomes final and conclusive.” The case where a source of the Constitutional Court is cited as a ground for filing a petition for a retrial refers to the case where a court rendered a ruling of unconstitutionality binding upon the court (see, e.g., Supreme Court Decision 95Da14, Apr. 27, 2001). The Constitutional Court’s ruling of unconstitutionality is a modified form that is not prescribed by the Constitution and the Constitutional Court Act but is clearly unconstitutional (see, e.g., Supreme Court Decisions 2004Do711, Jan. 15, 2009; 2003Hun-Ga1, May 27, 2004; 2004Hun-Ga4, Apr. 26, 2006).

On the other hand, the decision subject to a retrial was lawful the disposition of this case, which excluded the spouse inheritance deduction on the ground that the plaintiff could not divide the inherited property within the time limit set by the legal provision of this case due to a lawsuit for division of inherited property with other inheritors. However, the Constitutional Court confirmed that the legal provision of this case was unconstitutional on the ground that the exclusion of the spouse inheritance deduction delayed due to inevitable reasons, such as the continuation of the lawsuit due to the unconstitutionality ruling of this case from the heir's inheritance deduction on the ground that the heir's property rights and equality rights are infringed, and that this constitutes a case where the plaintiff's constitutional complaint was accepted on the ground that the decision subject to a retrial of this case constitutes a case where

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The legal provisions of this case, which are the grounds for the disposition of this case, have been ruled to be inconsistent with the Constitution. Examining the contents of the decision of inconsistency with the Constitution, the legal provisions of this case against the plaintiff et al. do not continue to apply to the case subject to review. The case subject to review is the case that led to the decision of inconsistency with the Constitution, and the amended Act shall be applied pursuant to the amendment of the Constitution. Thus, the disposition of this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The inconsistency with the Constitution and the scope of provisional application

Article 19(1) of the former Inheritance Tax and Gift Tax Act allows a spouse to deduct the actual amount of inherited property from the taxable value of inherited property within a certain limit, taking into account the so-called "one-time taxation principle for the remaining spouse to be taxed at the time of the death of the remaining spouse after reserving the taxation up to the specified ratio of inherited property," and reflecting the recognition of contribution to and livelihood security for the inherited property of the remaining spouse (see Constitutional Court Order 99Hun-Ba120, Nov. 29, 2001). The legal provision of this case provides that a spouse’s report on the division of inherited property shall be filed within a certain limit in order to obtain the above spouse’s inheritance deduction, and as a matter of principle, it shall be extended within six months from the day after the filing deadline of the inheritance tax base return or one year from the commencement date of inheritance, and only in extenuating circumstances, such a period shall be extended within six months.

In the decision of inconsistency with the Constitution of the Republic of Korea, the Constitutional Court has a legitimate legislative purpose to prevent the spouse’s gratuitous transfer of inherited property by means of transferring inherited property to the heir after the inheritance deduction and to early determine the tax legal relationship with respect to inheritance. However, in cases where there are inevitable circumstances where it is difficult to complete division of property within the statutory period because the substantive dispute over inheritance is pending, such as the adjudication on division of inherited property, the result of the adjudication is not opened to be reflected later in the calculation of inheritance, without opening up a way to reflect the result of the adjudication by the ex post facto request for correction, etc., and it violates the principle of proportionality by uniformly denying the inheritance deduction after the above period, thereby infringing the claimant’s property rights, and further infringing the claimant’s right to equality, as there is no reasonableness of the discrimination. Meanwhile, the reason why the legal provision of this case is unconstitutional is not a requirement for the spouse inheritance deduction, but a legislative purpose of this case should be established to prevent the inheritance of inherited property from being unconstitutional until a certain period of time without any justifiable reason.

According to the unconstitutionality of the legal provisions of this case, the decision of inconsistency with the Constitution and the grounds for provisional application of the legal provisions of this case, the Constitutional Court's order to continue the application of the legal provisions of this case to a certain time despite confirming the unconstitutionality of the legal provisions of this case is intended to avoid inheritance or to prevent unfair cases where a spouse's inheritance deduction is applied without any justifiable reason, and the grounds that respect the legislative formation right as to the "heirs who are not able to have no choice but to have no choice but to take any remedy for the division of inheritance due to unavoidable reasons such as the continuation of litigation, etc." are merely related to the necessity to urge the legislative improvement instead of making a simple decision of unconstitutionality as to the legal provisions of this case.

Therefore, in the decision of inconsistency with the Constitution of the Republic of Korea, the effect of the part ordering the continuous application of the legal provision of this case does not extend to the fact that the division of the inherited property is a provision excluding the inheritance deduction for the inheritor who does not have any justifiable reason. Furthermore, it is reasonable to view that the effect of the division of the inherited property is a provision excluding the inheritance deduction for the inheritor who is delayed due to inevitable reasons such as the continuation

2) The amendment of the Inheritance Tax and Gift Tax Act and the retroactive effect of inconsistency with the Constitution

Article 19(2) and (3) of the Inheritance Tax and Gift Tax Act (amended by Act No. 12168, Jan. 1, 2014; hereinafter referred to as "the amended Inheritance Tax and Gift Tax Act") shall apply to the case where the spouse's inheritance deduction is divided into the spouse's inherited property within six months from the day following the date of the division of inherited property under Article 67. However, where it is impossible to divide the spouse's inherited property by the due date of the division of inherited property due to extenuating circumstances, the time limit for division of inherited property shall be extended by six months from the day following the due date of the division of the spouse's inherited property, and in cases where a lawsuit or a request for adjudication is filed due to an inevitable cause, the time limit for division of inherited property shall be extended by six months from the day following the date of the completion of the lawsuit or a request for adjudication. However, Article 5 of the Addenda provides that "the amended provisions of

As long as the Constitutional Court made a decision of inconsistency with the Constitution as to a certain provision of the law and entrusts the legislative body with the legislative discretion to revise or abolish the provision of the law in a constitutional manner, the legislative discretion and the scope of retroactive application depends on the legislative discretion as a matter of principle. However, considering the purport of the decision of inconsistency with the Constitution as to the provision of the former Inheritance Tax and Gift Tax Act or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution as to the provisions of the former Inheritance Tax and Gift Tax Act, at least as to the case in question where the decision of inconsistency with the Constitution is made and the case in question is pending in the court at the time of the decision of inconsistency with the Constitution as to the provisions of the former Inheritance Tax and Gift Tax Act as to the pertinent provision of the same case, the previous provisions of the Inheritance Tax and Gift Tax Act cannot be applied to these cases, even if there is no transitional measure as to the retroactive application of the provisions of the former Inheritance Tax and Gift Tax Act, and the provisions of the amended Act to which the unconstitutionality has been removed are applied (see, e.g., Supreme Court Decision 2008Du98Du.

3) Whether the revised provisions of the Inheritance Tax and Gift Tax Act on the instant case are retroactively applied

In the case of this case, as seen earlier, the plaintiff applied for an adjudication on the constitutionality of the provisions of this case of the former Inheritance Tax and Gift Tax Act in the case subject to review, but was dismissed, and the plaintiff filed a constitutional complaint seeking confirmation of the constitutionality of the provisions of the former Inheritance Tax and Gift Tax Act based on Article 68(2) of the Constitutional Court Act and received the decision of inconsistency with the Constitution of this case. Thus, the case of this case constitutes a case where the validity of the decision of inconsistency with the Constitution of this case is affected by the inheritance deduction provisions of the

4) Whether the Plaintiff constitutes a person eligible for the spouse inheritance deduction

As seen earlier, on December 12, 2005, the Plaintiff reported to the Defendant the inevitable reason why it is impossible for the Plaintiff to divide the inherited property. The adjudication on division of inherited property between the Plaintiff and the inheritor was finalized on June 20, 201, and the Plaintiff completed the registration of transfer of ownership on the divided real property on July 7, 201, which was six months before the following day. Thus, the Plaintiff constitutes a person eligible for the spouse inheritance deduction under Article 19(3) and (1) of the amended Inheritance Tax and Gift Tax Act.

4. Conclusion

Therefore, in the case of this case, there is a ground for retrial, and the plaintiff's claim is justified, and the judgment of the court of first instance, which has different conclusions, is unfair, so the judgment of the court of first instance shall be revoked as per Disposition.