[1] Whether the amended Act and subordinate statutes are retroactively applied according to the decision of inconsistency with the Constitution as to the former Land Excess Profit Tax Act (affirmative)

[2] Treatment of land annexed to a building, where such combination is conducted under Article 8(1)4(a) and (b) of the Land Excess Profit Tax Act

[3] Whether Article 11(2) of the Land Excess Profit Tax Act (amended by the Constitutional Court’s ruling of inconsistency with the Constitution) applies retroactively to the Constitutional Court’s ruling (affirmative)

[1] In accordance with the Constitutional Court's ruling of inconsistency with the Constitution on Land Excess Profit Tax Act (the Constitutional Court Order 92HunBa49, 52 delivered on July 29, 1994), each of the provisions of the law, the Enforcement Decree, and the Enforcement Rule, all of which are amended to remove or improve the unconstitutional elements pointed out in the decision, shall apply to all of the cases in question, as well as those which are still pending in the court, unless they are applied disadvantageous to taxpayers.

[2] Article 25 (1) 7 of the Enforcement Decree of the Land Excess Profit Tax Act amended on December 31, 1994 is a provision applicable in cases where the provisions of Article 8 (1) of the Land Excess Profit Tax Act and Articles 7 through 21 of the Enforcement Decree of the same Act are concurrently applied in cases where the provisions of Article 8 (1) of the Land Excess Profit Tax Act, which classify idle land, etc. by use, are concurrently applied. Thus, it cannot be deemed that the provisions of each item of the above subparagraph, which define the idle land, etc. for the same purpose, are concurrently applied in cases where the provisions of each item of the above subparagraph are concurrently applied. In this case, the provisions that recognize the area of the idle land, etc. more significantly than that of the general principle should be applied in cases where the provisions of Article 8 (1) 4 (a) and (b) of the Land Excess Profit Tax Act compete with each other.

[3] According to the Constitutional Court's decision of inconsistency with the Constitution on the former Land Excess Profit Tax Act (the Constitutional Court Order 92HunBa49, 52 delivered on July 29, 1994), the standard market price of the land at the end of the taxable period under Article 11 (2) of the former Land Excess Profit Tax Act shall be based on the standard market price of the land on January 1 of the year following the year in which the end of the taxable period belongs, and the above amended provisions shall apply retroactively to the same case. Moreover, Article 11 (2) of the same Act is merely a confirmation that the same interpretation has been made under the previous provisions.

[1] Article 107 (1) of the Constitution, Article 47 (2) of the Constitutional Court Act / [2] Article 8 (1) 4 (a), (b) and (5) of the Land Excess Gains Tax Act, Article 25 (1) 7 of the Enforcement Decree of the Land Excess Gains Tax Act / [3] Article 11 (2) of the Land Excess Gains Tax Act, Article 107 (1) of the Constitution, Article 47 (2) of the Constitutional Court Act

[1] [3] Constitutional Court Order 92HunBa49, 52 decided July 29, 1994 (Gong12792No. 36 decided July 28, 1995) (Gong1995Ha, 2963) / [1] Supreme Court Decision 92Nu18122 decided Nov. 10, 1995 (Gong1995Ha, 3945), Supreme Court Decision 93Nu17911 decided Jan. 26, 1996 (Gong196Sang, 814), Supreme Court Decision 93Nu401 decided Apr. 26, 1996 (Gong196No1975 decided Apr. 196; 196Nu19369 decided Apr. 36, 1995) / [196Nu194979 decided Apr. 16, 1996] Supreme Court Decision 93Nu19639595 decided Apr. 196, 199696

Plaintiff 1 and one other

Samsung Head of Samsung Tax Office

Seoul High Court Decision 92Gu28091 delivered on May 13, 1993

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

1. We examine the plaintiffs' grounds of appeal.

A. On the first ground for appeal

In addition to paragraphs (1) through (3) of Article 8 of the Land Excess Profit Tax Act (hereinafter referred to as the "Land Excess Profit Tax Act"), matters necessary for the criteria for determining idle land, etc. shall be prescribed by Presidential Decree. Accordingly, Article 25 (1) 5 (b) of the Enforcement Decree of the Land Excess Profit Tax Act provides that the area of land annexed to a specific building shall be calculated by multiplying the total land area by the ratio of the floor area of each building to the total floor area of each building, in the case of the land of which many buildings with different uses are settled within the same boundary, by the ratio of the floor area of each building to the total floor area of each building. Since the court below recognized that housing and neighborhood living facilities are settled within the same boundary, it is just to consider the area calculated by multiplying the total land area as the area of land annexed to neighborhood living facilities by the ratio of the floor area of neighborhood living facilities to the total floor area of the whole building area. There is no error of law

The issue is that the entire land of this case should be regarded as the land annexed to the housing on the ground that the area of the housing on the land of this case is larger than the area of the neighborhood living facilities, but this is merely a ground contrary to the law of the above provision, and it cannot

B. On the second ground for appeal

According to the reasoning of the judgment below, the court below rejected this case's neighborhood living facilities of this case's assertion that the plaintiff should preferentially apply items (a) of Article 8 (1) of the former Enforcement Decree of the Land Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) which provides that if applicable provisions are competition in the application of each subparagraph of Article 8 (1) of the Act and the Enforcement Decree thereof, the area of idle land, etc. should first be applied in light of Article 25 (1) 7 (b) of the former Enforcement Decree of the Land Tax Act (amended by Presidential Decree No. 1470 of Dec. 31, 1994) which provides that the land of this case's neighborhood living facilities of this case's case should be applied to the land exceeding the standard area prescribed by Presidential Decree among the land on which the building is settled as idle land, etc.

However, according to the Constitutional Court's ruling of inconsistency with the Constitution of the Republic of Korea (the Constitutional Court Order 92HunBa49, 52, July 29, 1994) on the former Land Tax Law (the Constitutional Court Order 92HunBa49, 52, a consolidation) all the provisions of the law, the Enforcement Decree and the Enforcement Rule are applied to all the cases in question, as well as the cases in question, which are still pending before the court, unless they are applied disadvantageously to taxpayers (see Supreme Court Decision 93Nu17911, Jan. 26, 1996, etc.). In the above amendment, when the above provisions of Article 25 (1) 7 of the Enforcement Decree were amended, and the provisions of Article 8 (1) of the same Act and Articles 7 through 21 of the Enforcement Decree of the same Act are applied in preference to the cases in which the area of idle land, etc. is applied, so the provisions of the former Enforcement Decree are no longer applicable.

However, it is clear that the provision of the above new Enforcement Decree is applicable to cases where the provisions of Article 8 (1) of the Act and Articles 7 through 21 of the Enforcement Decree of the Act provide for the classification of idle land, etc. for each use are concurrent. Thus, it cannot be deemed that the provision of the above new Enforcement Decree is applicable to cases where the applicable provisions are concurrent between "each item of the above subparagraph which provides idle land, etc. for the same use." In this case, the provision that recognizes the area of the idle land, etc. as the general principle should be applied first.

Therefore, the judgment of the court below is erroneous on the premise that the provisions of the former Enforcement Decree of the Land Tax Act are applied. However, if the provisions of Article 8 (1) 4 (a) and (b) of the Land Tax Act competes with each other, the court below's conclusion that the area of idle land, etc. should be applied more preferentially than that of subparagraph (b) is justifiable. Thus, the argument is without merit.

C. On the third ground for appeal

As seen above, at the time of the amendment of the former Local Tax Act, Article 11(2)(b) of the Act, which is the issue in this case, is amended that the standard market price of the land at the end of the taxable period pursuant to the provision of Article 11(1) of the Act, shall be based on the standard market price of the land on January 1 of the year following the year in which the taxable period ends, and the above provision of the amendment shall also be applicable retroactively to this case as in this case. Furthermore, Article 11(2) of the Act is merely a confirmation that the same interpretation was made by the previous provision of the Act (see Supreme Court Decision 93Nu22548 delivered on October 13, 195).

Therefore, the judgment of the court below that deemed the standard market price on January 1, 1991 as the standard market price at the end of the scheduled period of determination of this case is just regardless of the amendment of the above provision, and there is no illegality of law such as the theory of lawsuit. The argument is without merit.

2. However, as seen earlier, Articles 11, 11-2, and 12(a) of the amended Elementary and Secondary Tax Act shall apply to the tax base and tax rate for the scheduled period of determination in this case, and the judgment of the court below that held the disposition in this case lawful, which imposed and collected the tax amount calculated by applying the relevant provisions of the former Elementary and Secondary Tax Act, as a result of the application of the legitimate laws and regulations on the tax base and tax rate, is reversed in this regard.

3. Therefore, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)