Plaintiff

Seoul Regional Tax Office

May 29, 2018

Seoul Administrative Court Decision 2014Guhap10455 decided September 19, 2014

1. Of the judgment of the first instance, the part against the Plaintiff, which orders revocation below, shall be revoked. On May 21, 2014, the rejection of an application for renewal of registration on tax agent services filed by the Defendant to the Plaintiff shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 30% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant.

The judgment of the first instance is revoked. On May 21, 2014, the Defendant’s disposition of ex officio revocation of registration of tax agent services and disposition of rejection of application for renewal of registration of tax agent services shall be revoked.

1. The details of the disposition and whether the part of the lawsuit in this case seeking revocation of registration revocation is legitimate;

The reasoning for this part of the judgment by the court is the same as that for each corresponding part of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Whether the instant disposition is lawful

A. Facts of recognition

The following facts are either in dispute between the parties or are significant in this court:

1) On May 18, 2015, this Court made a request for adjudication on the constitutionality of a law to the Constitutional Court to the effect that, with respect to Articles 6, 20(1), and 20-2 of the Certified Tax Accountant Act (amended by Act No. 11610, Jan. 1, 2013), the said provision prohibiting an attorney-at-law who is qualified as a certified tax accountant from filing for registration in the Tax Agent Agency register, “The said provision violates the freedom of occupation and violates the principle of equality and the principle of prohibition against essential infringement of fundamental rights.”

2) On April 26, 2018, the Constitutional Court rendered a provisional decision of inconsistency with the Constitution on the following grounds: (a) Article 6(1) of the Certified Tax Accountant Act (amended by Act No. 11610, Jan. 1, 2013) and the main text of Article 20(1) of the Certified Tax Accountant Act (amended by Act No. 9348, Jan. 30, 2009) (hereinafter “instant statutory provisions”) with respect to the case of the request for adjudication on the unconstitutionality of statutes; (b) each of the aforementioned statutory provisions continues to apply until the amendment was made on December 31, 2019; (c) the provisional decision of inconsistency with the Constitution (see Constitutional Court Decision 2015Hun-Ga19, Apr. 26, 2018; hereinafter “instant decision of inconsistency with the Constitution”).

A) The legal provision of this case provides that an attorney-at-law holding a qualification as a certified tax accountant shall not be permitted to conduct all business of a certified tax accountant. This is to limit the freedom of choosing the occupation of a certified tax accountant, since an attorney-at-law holding a qualification as a certified tax accountant and an attorney-at-law holding a qualification as a certified tax accountant simultaneously with the qualification as a certified tax accountant.

B) An attorney-at-law holding a license as a certified tax accountant is a person who is qualified as a certified tax accountant under the Certified Tax Accountant Act, and has the expertise and ability necessary for the interpretation and application of the tax-related Acts and relevant Acts and subordinate statutes. It is difficult to accept that an attorney-at-law lacks expertise and ability in interpreting and applying the tax-related Acts and subordinate statutes. Nevertheless, it is difficult to recognize the suitability of the legal provisions of this case as a means to achieve the legislative purpose of ensuring the expertise of tax agent business and preventing defective tax agent business.

C) Inasmuch as an attorney-at-law holding a certified tax accountant qualification has already been granted the qualification as a certified tax accountant under the law, the freedom to provide tax agent services is recovered. If such attorney-at-law lacks expertise and ability to provide tax agent services, in principle, he/she should be allowed to provide tax agent services based on the recovered freedom of choice of occupation. Nevertheless, the instant legal provision completely prohibits an attorney-at-law holding a qualification as a certified tax accountant from providing all tax agent services without considering the expertise and ability to provide tax agent services as a certified tax accountant. The instant legal provision excessively limits the freedom of choice of an attorney-at-law holding a qualification as a certified tax accountant. The instant legal provision completely prohibits an attorney-at-law holding a qualification as a certified tax accountant from holding a qualification as a certified tax accountant from providing all tax agent services.

D) Since an attorney-at-law holding a certified tax accountant qualification was granted a license as a certified tax accountant under the law, in principle, he/she should be allowed to provide a tax agent service. However, the legal provision of this case prohibits all tax agent services as a certified tax accountant. Accordingly, the restriction on freedom of occupation as a certified tax accountant is very serious. This is difficult to see that the disadvantage of an attorney-at-law holding a certified tax accountant qualification is less than that of public interest to achieve the legal provision of this case, and therefore, the legal provision of this case does not meet the balance of legal interests. Therefore, the legal provision of this case violates the Constitution because it infringes on the freedom of occupation as a certified tax accountant in violation of the excessive prohibition principle.

E) As above, the instant legal provision is in violation of the Constitution and ought to be decided as unconstitutional. However, if a simple decision of unconstitutionality is made with respect to the instant legal provision, there arises a legal gap that may disappear under the ground provisions concerning the registration of certified tax accountants by general tax accountants. The scope of tax agents, and the specific procedures and details necessary to grant authority to a certified tax accountant qualification attorney, are matters to be determined by the legislators. Accordingly, instead of making a decision of unconstitutionality with respect to the instant legal provision, a decision of inconsistency with the Constitution should be declared, but the legislative amendment should continue to apply until the legislative amendment was made.

B. Determination

1) Although the Constitutional Court's decision of inconsistency with the Constitution confirms the unconstitutionality of the legal provisions of this case, it did not immediately lose its effect and has been continuously applied until the amendment was made. However, it seems that the Constitutional Court's order of provisional application to a certain time despite the unconstitutionality of the legal provisions of this case is due to the necessity to continue to maintain the ground provisions concerning general tax accountant's registration under the legal provisions of this case. In addition, considering the purport of the decision of inconsistency with the Constitution as to the legal provisions of this case or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution, it is reasonable to view that the pertinent case which has become a decision of inconsistency with the Constitution as to the pertinent

2) According to the aforementioned facts, the instant case is subject to the retroactive effect of the decision of inconsistency with the Constitution, and thus, the Defendant’s disposition, which applied the instant legal provision on a different premise, is unlawful.

4. Conclusion

If so, the part of the plaintiff's lawsuit of this case seeking revocation of revocation of registration is unlawful and thus, the part concerning the claim for revocation of the disposition of this case should be cited for the reasons. Since the judgment of the court of first instance is partially different from this conclusion, the part concerning the disposition of this case against the plaintiff in the judgment of first instance is partially accepted, and the part concerning the disposition of this case against the plaintiff in the judgment of first instance is revoked

[Attachment]

Judges Doing and decorations (Presiding Judge)