Whether imposition has been made by recognizing only the category of land on the public account as a site;

The initial taxation disposition is appropriate because there is no evidence to regard it as the effect of the mass business as of the end of the taxable period or during the taxable period.

The contents of the decision shall be the same as attached.

1. Each disposition of KRW 112,425,660, respectively, imposed on each of the plaintiffs as of November 10, 1993 by the defendant, which exceeds KRW 109,425,660, respectively, shall be revoked. 2. The litigation cost of KRW 10,000,000, shall be ten, and the remainder shall be borne by the plaintiffs, respectively.

1. Details of the disposition;

The following facts may be acknowledged if there is no dispute between the parties, or if Gap evidence Nos. 1, 2, 9 (the evidence No. 9 is the same as Eul evidence No. 4-2), Eul evidence No. 3-1, and Eul evidence No. 6 are collected from the whole purport of the pleading, and there is no other counter-proof.

(1) Around November 10, 1977, the Plaintiffs jointly acquire 1 large 9,260 square meters of ○○-ri 7-ri, ○○-ri, ○○, ○○-gun, ○○-gun, ○○, ○○-do, prior to the division (hereinafter “instant land”). Subsequent to the alteration of the name of the administrative district, the Plaintiffs were divided into 1 large 8,432 square meters of ○-dong, Gwangju on November 27, 1993, and then owned 6 large 828 square meters of ○-ri, ○○-dong, Gwangju on November 27, 1993.

(2) The defendant issued a disposition that imposes the land excess profit tax under Article 8 (1) 14 (a) of the Land Excess profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994; hereinafter the same shall apply) and Article 21 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14470 of Dec. 30, 1994; hereinafter the same shall apply) on the plaintiffs for the taxable period from January 1, 1990 to December 31, 192, each of the land excess profit taxes under the former Act (hereinafter referred to as the "the disposition of this case").

2. The plaintiffs' assertion and judgment

A. As to the assertion that the land of this case is not a idle land as it is not a current state, the plaintiffs first asserted that although the land of this case is a site, although the land of this case is classified as a site, it is unlawful as a disposition that the plaintiffs had been established from around 1979 to around 250 square meters of one unit area and 800 square meters of a household water and 1000 square meters of a household water on that ground, and used it as a fish farm site and its current status do not exceed the basic area of the land for stock farming under the Land Excess Profit Tax Act, since it is not a idle land subject to taxation under the Land Excess Profit Tax Act, the current status of the land of this case is nothing more than the basic area of the land for stock farming under the Land Excess Profit Tax Act, and thus, the land of this case is illegal as a disposition that is recognized and imposed on

Except as otherwise provided for in this Act, the determination of idle land, etc. shall be based on the actual status as of the end of the taxable period: Provided, That in cases where the actual status is unclear, it shall be based on the registration on the public record, and Article 8(1) of the former Enforcement Decree provides that the land owned by an individual subject to taxation of the land excess profit tax shall be the land falling under any of the following subparagraphs. Article 6 of the former Enforcement Decree provides that the land exceeds the basic area of the land for stock farming as prescribed by the Presidential Decree, or the land for stock farms located within the urban planning districts of the Special Metropolitan City, Metropolitan City, Metropolitan Cities, and Sis/Guns; Article 13(1)6 of the former Enforcement Decree provides that Article 8(1) of the former Enforcement Decree refers to the area of land calculated by applying the standards of land and buildings for stock farming as prescribed by the Presidential Decree under subparagraph 6 of the attached Table 2. Article 8(2) of the Act provides that the land for stock farms and grassland or feed for each business as prescribed in the attached Table 2 shall be the basic area:

However, there is no evidence to view the current status of the land of this case as the end of the taxable period of this case or during the taxable period of this case as being alleged by the plaintiffs. Rather, the plaintiffs themselves have been closed on the land of this case since November 1, 1989 before the commencement of the taxable period of this case and they do not actually use the land as a mass farm. Further, if the land of this case was collected within 3/10 of the evidence No. 5-3, Eul evidence No. 7, Eul evidence No. 8-1 and 8-2, it is without merit to view the above land as being leased from the plaintiffs around 1979 and operated a mass farm business for 10 years, and the plaintiffs' assertion that the above land of this case was removed from each of the above land of this case under the premise that the above land should be removed from the standard area of the above land of this case by being separated from the above land of this case for 19/1989.

B. As to the assertion that the land of this case is a land, the use of which is limited under the provisions of laws and regulations, and which is not considered idle land, the plaintiffs again, in light of the following facts: (a) prior to the acquisition of the land of this case, the plaintiffs read the cadastral record prior to the acquisition of the land of this case; (b) confirmed by the relevant authorities about urban planning relations, etc.; or (c) obtained authorization within the office of education having jurisdiction over the establishment of the driving school on June 1978; and (d) on July 31, 1978, the application for the construction permit made through the office of ○○○ Construction was rejected only due to the construction regulations of the authorities in accordance with the construction regulations of the building materials at the time of the acquisition, the land of this case was designated as a green-belt area at the time of the acquisition; (b) the land of this case was not designated as a military protection area; and (c) since the designation of a military installation protection area of the above land, the plaintiffs were legally regulated to use the land of this case for unavoidable reasons for the above construction permit.

Article 8 (1) 14 of the former Enforcement Decree of the Protection of Military Installations Act and Article 21 (1) 1 of the former Enforcement Decree of the Protection of Military Installations Act provide that the remaining land, etc. which is subject to taxation of land excess 1 through 13, etc. shall not be included for any purpose. According to Article 8 (3) of the above Act and subordinate statutes, if the land was not known to the Minister of National Defense for the purpose of acquiring military installations, it shall not be considered as idle land, etc. for a period of time prescribed by the Presidential Decree, notwithstanding the provision of paragraph (1) of the above Article 8 (1) 14 of the same Act and Article 8 (1) 1 of the former Enforcement Decree of the Protection of Military Installations Act, and if the land was not known to the court prior to the acquisition of military installations, it shall not be considered as 9 years prior to the acquisition of military installations, and it shall not be considered as 9 years prior to the acquisition of military installations.

C. As to the claim that the land of this case is a land, the continuous use of which as a site for a stock farm is limited under the provisions of laws and regulations, and which is not considered as a idle land, the plaintiffs also claim that since around November 1989, when the establishment of a driving school, which is the original purpose of the acquisition, was restricted on the land of this case, the land of this case was installed as a stock farm and used as a stock farm site from the day of 1979 to the day of November 1, 1989, as the location of the land of this case was incorporated into Gwangju Metropolitan City, the land of this case cannot be used as a stock farm site as a new stock farm site under other Acts and subordinate statutes separate from the designation of a military facility protection area, and as such, at least since then, the land of this case was prohibited or restricted from the continuous use of the land as a stock farm site under other Acts and subordinate statutes, the disposition of this case by the defendant imposing the land excess profit tax by deeming it as a idle land, which

However, even if the plaintiffs acquired the land of this case which was already designated as a military installation protection zone, if the use of the land of this case was separately prohibited or restricted pursuant to other Acts and subordinate statutes separate from the designation of the military installation protection zone, it is reasonable to view that the above case also constitutes an inevitable case where the use of the land of this case is restricted by the provisions of Acts and subordinate statutes after the acquisition of the land stipulated in Article 8 (3) of the Land Excess Acquisition Tax Act. However, since the original land of this case is not a stock farm site, the land of this case is not the land of this case as seen earlier, as the plaintiffs asserted, the land of this case used the land of this case as a stock farm site in reality, and was incorporated into Gwangju Metropolitan City, and the continued use of the land as a stock farm site was restricted by the Municipal Ordinance. Further, the restriction pursuant to the above ordinances is a new restriction separate from the restriction pursuant to the designation of the military installation protection zone of this case, and it can be viewed as a prohibition or restriction pursuant to the above Acts and subordinate statutes, the plaintiffs' use of the land of this case cannot be asserted.

D. Regarding the assertion that the land in this case is not idle land, which is entirely inconsistent with the purpose of implementing the Land Excess Profit Tax Act, the plaintiffs, other than the plaintiffs, on the ground that the land in this case has been owned for more than 15 years since its acquisition, and for which no actual sale has been made during that period, the land excess profit tax law over the land is not used directly for production or living, such as idle land and non-business land, overcoming the limit of the transfer tax and the redemption system of development profit due to the increase in land price, overcoming the fairness and fairness of the economy, enhancing the fairness and fairness of the economy, by promoting the supply of idle land, thereby contributing to the stability of land price and efficient use of land, and further contributing to the sound development of the national economy. In light of the legislative purpose of this, the argument that the land in this case is not idle land under the same Act as it is not consistent with its purpose, but merely on the ground of its assertion and reason, it cannot be said that the land in this case is not idle land.

E. As to the applicable statutes

(1) (A) The plaintiffs last, even though it is reasonable to impose land excess profit tax on the land of this case on the ground that the land of this case was stipulated in the old law, the defendant's disposition of this case is unlawful as it is a disposition without any ground to apply the old law decided to be inconsistent with the Constitution by the decision of the Constitutional Court, and as long as the new law amended on December 22, 1994 was enforced newly in accordance with the above decision of the Constitutional Court, it shall be calculated in accordance with the new law as long as the new law amended on December 22, 1994 was enforced.

(B) We examine the case. The Constitutional Court ruled that Article 8(1)13, 10, 12, 22, and 23 of the former Land Excess Profit Act (No. 4177, Dec. 30, 1989; Act No. 4561, Jun. 11, 1993; Act No. 4563, Jun. 11, 1993; Act No. 4563), Article 8, 8(1)13, 10, 11, 12, 22, and 23 of the former Act is unconstitutional (92Hun-Ba49,52 (merged)) and that all the provisions of Article 8(1)13, 12, and 23(3) of the former Act are unconstitutional and unconstitutional until the Constitutional Court declares that the provisions of Article 11(2) of the former Act are unconstitutional and are unconstitutional, and that the provisions of Article 16(1)2 of the former Act are no more effective.

In response to the reasons for the decision of unconstitutionality of the Constitutional Court, the National Assembly amended the former Act by Act No. 4807 on Dec. 22, 1994 and enforced the amended Act (hereinafter the same Act). The amended provisions not only indicate that the above decision of the Constitutional Court has unconstitutionality but also other provisions have been amended. As to the provisions pointed out that the above decision of the Constitutional Court has unconstitutionality, as long as the above decision of the Constitutional Court leaves the duty to revise or abolish the provisions that contain unconstitutionality to the legislative formation discretion, the above decision of the Constitutional Court has to be applied to not only the above case, but also all concurrent cases where the court is proceeding to the court on the premise of the decision after the above decision.

(C) If so, Articles 8(1)13 and 14(a), 11(2), 12, 23(3), and 26(1) of the former Act (Article 8(1)13 and 14(a), 11, 11-2, 12, and 26 of the new Act) shall apply to the land excess gains in the preceding taxable period (see, e.g., Supreme Court Decisions 93Nu161, Oct. 13, 1995; 93Nu2548, Oct. 161, 196; 93Nu2548, Oct. 13, 1995) of the former Act, which were pointed out to be unconstitutional in the above decision of the Constitutional Court. As a result, the disposition in this case shall be lawful within the scope of legitimate tax amount calculated by applying the provisions of the new Act related to the unconstitutionality, and the part exceeding the scope shall be deemed unlawful.

(b) Justifiable tax amount;

Furthermore, with respect to the legal provisions applicable to the legitimate scope of the tax amount, it is difficult to find out that there is no problem as to whether new laws apply to the portion of Article 8(1)13, Article 23(3), and Article 26(1) of the amended provisions relating to the unconstitutionality of the tax amount, since it is not directly related to the land excess profit tax of this case. The remaining provisions of Articles 11(2), 11-2, and 12 of the new Act related to Article 11(2), Article 12 of the former Act shall apply to the calculation of the land excess profit tax of this case. According to Article 11(1) of the new Act, the tax base of the land excess profit tax shall be calculated by lots, in principle, by deducting the standard market price of the land of the first day of the taxable period from the standard market price of the land of the last day of the taxable period, the tax base of the land excess profit of 100,000 won shall be calculated by deducting the increase in land prices of the pertinent taxable period, and the tax base of 100,00,00,0,00,0,0,00,0,00,0,000, more won.

Then, if the whole purport of the pleading is collected from each entry of the evidence Nos. 1-1 to 6-1-2 of the evidence Nos. 1-2 of this case, the land price of this case at the end of the taxable period concerning the 1/2 shares among the land of this case is KRW 1,027,860,000, KRW 555,600 for the land price at the start of the taxable period, and the increase in normal land price between the end of the taxable period and the start of the taxable period can be recognized respectively, and there is no counter-proof.

Therefore, in light of the above facts of recognition, each tax amount to be borne by the plaintiffs who own 1/2 shares among the land of this case by applying the above new provisions of the above new provisions of the law, shall be calculated. The total amount of land excess profit during the taxable period prior to the first 24,851,320 won among the land of this case shall be KRW 1,027,860,000 [gold KRW 55,60,000 + KRW 247,408,680]; if the amount is deducted from the basic deduction amount of KRW 2,00,000,000 (Article 11-2 of the new law), the tax base amount shall be KRW 222,851,320 (gold KRW 224,851,300 - KRW 2,000,000, KRW 200, KRW 3000, KRW 2500, KRW 205, KRW 2005.

3. Conclusion

Therefore, the disposition of this case is lawful within the scope of KRW 109,425,660, which is the above legitimate tax amount, and the part exceeding it is unlawful. Thus, each of the claims of this case is justified only for the part exceeding the above legitimate tax amount. Each of the claims of this case is dismissed without merit, and the remaining claims are dismissed, and the costs of lawsuit are shared at the ratio of KRW 9.1 to the plaintiffs and the defendant in consideration of the winning ratio. It is so decided as per Disposition.