(a) The purpose of Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (Presidential Decree No. 10663, Dec. 31, 1981); Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (Presidential Decree No. 11399, Apr. 6, 1984) and Article 78-2 (2) 1 of the same Enforcement Rule (Newly Inserted by Presidential Decree No. 11399, May 12, 1984)

B. Purport of Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 10663 of Dec. 31, 1981)

A. The purpose of each provision of Article 142(1)1 (6) of the Enforcement Decree of the Local Tax Act amended by Presidential Decree No. 10663, Dec. 31, 1981; Article 142(1)1 (6) of the Enforcement Decree of the same Act; Article 11399 of the Enforcement Decree of the same Act amended by Presidential Decree No. 11399, Apr. 6, 1984; and Article 78-2(2)1 of the Enforcement Decree of the same Act, which was newly established May 12, 1984, is to construct a building on any land, if the building is constructed without permission, it shall not be deemed to be a ground settlement under Article 78-2(2)1 of the Enforcement Decree of the same Act, and ultimately, the land constitutes a public land without a ground settlement. However, even after the amendment of the same Article, the building without permission shall be deemed to be a ground settlement object only when it satisfies

B. The purport of Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 10663 of Dec. 31, 1981) is that the land which is not actually used at the time of the enforcement of the above Act is the land which is not actually used, and the temporary use is not actually used, and even if the land is not actually used, it does not constitute a public use without examining whether it falls under the above (a) or (h).

A. Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 10663, Dec. 31, 1981); Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 11399, Apr. 6, 1984); Article 78-2 (2) 1 (b) of the same Enforcement Rule (Newly Inserted by Presidential Decree No. 10663, May 12, 1984); Article 142 (1) 1 (6) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 10663, Dec. 31, 1981)

B. Supreme Court Decision 86Nu92 delivered on May 26, 1987

[Judgment of the court below]

Attorney Lee Jae-soo et al., Counsel for the defendant

Daegu High Court Decision 86Gu138 delivered on October 16, 1987

The part of the judgment of the court below concerning the property tax and defense tax in 1981 shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

The plaintiff's remaining appeals are dismissed.

The costs of appeal on the dismissed appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. In respect of the disposition of imposition of the 1982 to 1985:

According to Article 142 (1) 1 (6) of the Enforcement Decree of the Local Tax Act amended by Presidential Decree No. 10663, Dec. 31, 1981, the term "land without ground settlement (excluding temporary and unauthorized buildings)" as of the starting date of property tax payment shall be defined as "land within an area as determined by the Ordinance of the Ministry of Home Affairs as of the starting date of property tax payment, and land without ground settlement (excluding temporary and unauthorized buildings)". According to the amended Enforcement Decree of the same Act as amended by Presidential Decree No. 11399, Apr. 6, 1984, the term "land, factory site, school site, and miscellaneous land which are determined by the Ordinance of the Ministry of Home Affairs as of the starting date of property tax payment (any building as determined by the Ordinance of the Ministry of Home Affairs shall not be considered as ground settlement goods)", it shall be defined as a building without permission under Article 78-2 (2) 1 of the Enforcement Decree of the Act on Special Measures for Construction, which is not reported under the Building Act.

The purpose of each of the above provisions is to construct a building on a parcel of land, if the building is constructed without permission, it shall not be considered as a ground settlement under the above provision of the Enforcement Decree, and the land eventually constitutes a public land with no ground settlement. However, after the amendment of the above provision on April 6, 1984, an unauthorized building shall be considered as a ground settlement only when it satisfies the requirements prescribed in the proviso of subparagraph 1 of the above provision of the Enforcement Rule.

In light of the records, even if there is a temporary building such as the Plaintiff Director, on the land of this case, so long as the building is an unauthorized building and there is no evidence to deem that it satisfies the requirements prescribed in the proviso of subparagraph 1 of the same Article of the above Enforcement Rule, the building cannot be deemed as a ground settlement under the above provision of the above Enforcement Decree. Therefore, the land of this case shall be deemed as a public land with no ground settlement, and even if the Plaintiff leased the land of this case to the non-party, etc. and used it for business such as a wood station, steel bars retail outlet, etc., there is no complaint for its conclusion.

The judgment below is just in its conclusion that the defendant's disposition of imposition of property tax in the year 1982 through 1985 was legitimate, considering that the reasoning of the judgment below is somewhat insufficient but it constitutes a public land. There is no error in the misapprehension of legal principles or incomplete deliberation as to the theory of lawsuit. It is without merit.

2.With respect to the disposition of imposition of 1981:

According to Article 142 (1) 1 (6) (amended by Presidential Decree No. 10663, Dec. 31, 1981) of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 10663, Dec. 31, 1981) which applies to the portion of the disposition of this case among the disposition of this case, it refers to the land excluding the following from among the land, land, factory site, school site and miscellaneous land in an area determined by Ordinance of the Ministry of National Affairs, which has no ground settlement,

In this case, following the provision that "a building, a structure for the garden, an unauthorized building constructed after January 14, 1974, or a temporary facility not used for use shall not be considered as a ground settlement, and a temporary installation and other temporary use, etc. of the object shall not be considered as a de facto use," is set forth in (a) through (h) as land to be excluded from the vacant land.

The purport of the above provision is that land used in fact at the time of the enforcement of the above provision refers to land which is not actually used, but is not actually used, and it is clear that the temporary use is excluded from land used in fact, so land used in fact is not used temporarily, and it does not constitute a public land without examining whether it falls under the exception prescribed in paragraphs (a) through (h) above (see Supreme Court Decision 86Nu92 delivered on May 26, 1987).

However, according to the records, the plaintiff was constructed on the land of this case since before January 14, 1974, and the plaintiff leased this land to the non-party, etc. and used it for business, such as wood stations and steel retail stations. Accordingly, the plaintiff's assertion that the land of this case was not actually neglected but used. Accordingly, the court below should have examined the actual use of the land of this case and consider whether the land of this case constitutes "land that is not actually used" among the requirements under the above provision of the Enforcement Decree. However, the court below's decision that the defendant's disposition of this case, which imposed heavy property tax in the year 1981, was legitimate, is unlawful by misapprehending the legal principles as to whether the land of this case was officially used at the time of enforcement of the above Enforcement Decree, and failing to exhaust all necessary deliberations. It is reasonable to discuss this error.

3. Therefore, the part of the judgment of the court below regarding the property tax and defense tax in 1981 is reversed, and that part of the case is remanded to the court below. The plaintiff's appeal as to the remaining part is dismissed. The costs of appeal as to the dismissal of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Park Jong-soo (Presiding Justice)