[부당이득금반환][공1994.12.1.(981),3109]
If a law which forms the basis for an administrative disposition is decided as unconstitutional after it is decided as unconstitutional, whether such administrative disposition becomes void automatically or not.
If the Constitutional Court, after an administrative disposition was rendered based on the law, decided that the law was unconstitutional, the administrative disposition would result in the same cause as that made without any legal basis. However, in order to make the defective administrative disposition null and void as a matter of course, the defect must be serious, as well as obvious. In general, it cannot be deemed that the circumstance that the law was in violation of the Constitution is objectively obvious even before the Constitutional Court renders a decision of unconstitutionality, barring any special circumstance, it is reasonable to view such defect only constitutes the ground for revocation of the above administrative disposition, and it does not necessarily constitute a ground for invalidation.
Article 47(2) of the Constitutional Court Act, Article 19 of the Administrative Litigation Act
Supreme Court Decision 92Nu9463 delivered on October 28, 1994
[Defendant-Appellee] Plaintiff 1 and 2 others
Korea
Seoul Civil District Court Decision 93Na21650 delivered on July 16, 1993
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
If the Constitutional Court, after an administrative agency made a decision on the constitutionality of a law based on a certain law, decided the law, the above administrative disposition becomes the same as that taken place without any legal basis, and thus, it would be deemed that there is a defect. However, in order for a defective administrative disposition to be null and void as a matter of course, the defect must be serious and obvious. In general, it cannot be deemed that the circumstance that the law is in violation of the Constitution is objectively obvious even before the Constitutional Court made a decision on the constitutionality of the Constitutional Court, barring any special circumstance, it is reasonable to view such defect only constitutes the ground for
Therefore, as alleged by the plaintiff, in imposing gift tax and defense tax on August 16, 192 on the donation of the forest of this case from the non-party, who is its father on April 27, 1990, by applying the main text of Article 9 (2) of the former Inheritance Tax Act (amended by Act No. 3474, Dec. 31, 1981; Act No. 4022, Dec. 26, 198; deleted by Act No. 4283, Dec. 31, 1990), the value of the forest of this case was assessed as at the time of the above taxation, not at the time of the above donation, and on the other hand, even if the other Constitutional Court declared that Article 9 (2) of the former Inheritance Tax Act was in violation of the Constitution, it cannot be deemed that there was no error in the misapprehension of legal principles as to the retroactive effect of the tax disposition or the judgment of unconstitutionality.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)