[1] The scope of the amended Act and subordinate statutes pursuant to the Constitutional Court's decision of inconsistency with the Constitution of the Republic of Korea on Land Excess Gains Tax Act

[2] The case holding that the amended Act pursuant to the decision of inconsistency with the Constitution of the Land Excess Gains Tax Act is not applicable, and the Enforcement Decree of the former Land Excess Gains Tax Act which is favorable to taxpayers is applied

[3] The meaning of the purpose of constructing a new building under Article 23 subparagraph 3 of the Enforcement Decree of the former Land Excess Profit Tax Act

[1] All the provisions of the Act, the Enforcement Decree, and the Enforcement Rule of the Act, which are amended to remove or improve the unconstitutional elements pointed out in the decision in accordance with the Constitutional Court's decision of inconsistency with the Constitution on Land Excess Gains Tax Act (the Constitutional Court Order 92HunBa49, 52 delivered on July 29, 1994), shall apply not only to the case in question, but also to the case in which the court still remains.

[2] Article 23 subparagraph 3 of the former Enforcement Decree of the Land Excess Profit Tax (amended by Presidential Decree No. 14470 of Dec. 31, 1994) provides that where land is acquired for the purpose of constructing a new building, it shall be excluded from idle land for one year from the date of its acquisition, but the main sentence of Article 23 subparagraph 3 of the amended Act provides that the commencement of a new building shall be the applicable requirement. However, even if the purchaser of land acquired the land for the purpose of constructing a new building, if it is clear that the building was not commenced as of the end of the scheduled period of determination, the above provision is applied disadvantageous to the purchaser of the land, so its propriety shall be determined pursuant to the former Enforcement Decree of the Land Excess Profit Tax Act

[3] The purpose of constructing a new building under Article 23 subparagraph 3 of the former Enforcement Decree of the Land Excess Profit Tax Act is to specifically construct a new building and prepare a plan and funds to build a new building within a considerable time, so it does not necessarily require that an application for a building permit should be filed within a grace period as stipulated in the Act in determining the existence of such purpose.

[1] Article 107(1) of the Constitution, Article 47(2) of the Constitutional Court Act / [2] Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), Article 47(2) of the Constitutional Court Act / [3] Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994)

[1] Supreme Court Order 92Hun-Ba49, 52 delivered on July 29, 1994 (No. 12792No. 36 delivered on July 28, 1995) Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2938 delivered on October 13, 1995 (Gong1995Ha, 382 delivered on November 7, 1995), Supreme Court Decision 93Nu8238 delivered on November 7, 1995 (Gong1995Ha, 3937 delivered on September 196, 194), Supreme Court Decision 92Nu1892 delivered on November 196, 194 (Gong19694 delivered on November 39, 196)

Plaintiff (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

The director of the tax office.

Seoul High Court Decision 92Gu26163 delivered on March 18, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. First, the Supreme Court's opinion that each of the provisions of the law, the Enforcement Decree, and the Enforcement Rule, which were amended to eliminate or improve the unconstitutional elements pointed out in the decision in accordance with the Constitution of the Constitutional Court (the Constitutional Court Order 92HunBa49, 52 delivered on July 29, 1994) with respect to the laws and regulations applicable to this case, shall apply to all of the cases in question as well as the cases which are still pending in the court (see, e.g., Supreme Court Decision 93Nu17911 delivered on January 26, 196).

However, the main text of Article 23 subparagraph 3 of the former Enforcement Decree of the Land Excess Profit Tax (amended by Presidential Decree No. 14470 of Dec. 31, 1994) provides that the land shall be excluded from idle land for one year from the date of its acquisition if the land was acquired for the purpose of constructing a new building. However, the main text of Article 23 subparagraph 3 of the amended Act provides that the commencement of the construction of the building shall be a new requirement for its application. According to the records, the plaintiff is the acquisition of the land for the purpose of constructing a new building, and it is clear that the building has not been commenced as of the end of the scheduled decision period, since the above provision in this case is applied disadvantageously to the plaintiff, its propriety shall be determined

2. The court below rejected the plaintiff's assertion that the land in this case is excluded from idle land on the ground that there was a subjective architect to recognize a new building as a new building under Article 23 subparagraph 3 of the former Enforcement Decree of the Land Excess Profit Tax Act, and at least it is required to apply for a building permit as a minimum disciplinary mark objectively indicating this.

However, the purpose of new construction of a building refers to the intention of constructing a building within a considerable time after preparing a plan and funds to build a new building (Supreme Court Decision 93Nu7303 delivered on May 10, 1994, Supreme Court Decision 93Nu1202 delivered on June 10, 1994, Supreme Court Decision 93Nu7303 delivered on June 10, 1994), and it is not necessarily necessary to apply for a building permit within a grace period stipulated by the Act in determining the existence of the purpose.

In this case, the plaintiff completed the design for constructing a building on the land of this case and tried to apply for a building permit to the competent Gu office, but the application for a building permit was bound to be reserved due to the government's measures restricting the building permit. Thus, the court below should review the facts and re-determine whether it constitutes the purpose of acquiring a building under Article 23 subparagraph 3 of the Enforcement Decree of the Land Excess Profit Tax Act. The appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)