(a) The validity of an administrative disposition issued on the basis of an unconstitutional law;

B. Whether a decision of unconstitutionality has a retroactive effect on an administrative disposition which became final and conclusive

(c) the measures of the court, where a lawsuit seeking confirmation of invalidity of an administrative disposition is filed on the ground that the relevant law is unconstitutional.

A. If the Constitutional Court, after the issuance of an administrative disposition based on the law, decided that the law, which served as the basis for the administrative disposition, is unconstitutional, the administrative disposition would be identical to that that carried out without the basis of the law. However, the defect in order to make the defective administrative disposition null and void as a matter of course should be serious, and it must be obvious. In general, the reason that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court renders a decision of unconstitutionality. Thus, the reason that the pertinent law, which served as the basis for the administrative disposition before the Constitutional Court renders a decision of unconstitutionality, violates the Constitution, can only be the premise for the action to revoke the administrative disposition, and it

B. Whether an administrative disposition based on a law that is unconstitutional is null and void is separate from the retroactive effect of the decision of unconstitutionality, and thus, it cannot be said that an administrative disposition based on a law that is unconstitutional is null and void as a matter of course, on the ground that the retroactive effect of the decision of unconstitutional is recognized. Rather, an administrative disposition based on a law that has already been filed for revocation and its binding effect does not extend

C. In a case where a lawsuit seeking nullification of a certain administrative disposition is filed on the ground that the law, which served as the basis for such administrative disposition, is unconstitutional, the court, unless there are other special circumstances, must dismiss the claim for nullification without determining whether the law is unconstitutional or not.

A. Article 19(b) of the Administrative Litigation Act; Article 47(c) of the Constitutional Court Act; Article 107(1) of the Constitution; Article 41 of the Constitutional Court Act; Article 35 of the Administrative Litigation Act

A. Supreme Court Decision 93Da41860 delivered on October 28, 1994

Attorney Lee Jae-ho, Counsel for the Korea Credit Guarantee Fund

Head of Mapo Tax Office

Seoul High Court Decision 90Gu19055 delivered on May 1, 1992

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

The grounds of appeal Nos. 1 and 2 are examined together.

1. According to the reasoning of the judgment below, the court below duly confirmed the seizure of the machinery of this case pursuant to Article 42 (1) of the Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990) before the amendment for the collection of value-added tax, corporate tax and defense tax on the above company on April 3, 1990, and determined that the plaintiff who paid the above company's debt to the above foreign exchange bank and transferred the rights to the above machinery cannot seize only the above machinery which became an object of security one year prior to the payment deadline of the above national tax, since the above proviso of Article 42 (1) of the same Act (the part of the above proviso of "one year prior to the above proviso of the above proviso) cannot be determined as null and void since it asserted that the above seizure disposition was unconstitutional.

2. If the Constitutional Court, after the issuance of an administrative disposition based on the law, decided that the law, which served as the basis for the administrative disposition, was unconstitutional, the above administrative disposition becomes identical with that that of the law, which was conducted without the basis of the law, and thus, the defect is serious, and it must be apparent. However, in general, it cannot be said that the circumstance that the law is in violation of the Constitution is objectively obvious before the Constitutional Court's decision of unconstitutionality is rendered. Thus, the reason that the law, which served as the basis for the administrative disposition, is in violation of the Constitution before the Constitutional Court's decision of unconstitutionality, can only be the premise of a lawsuit seeking revocation of the administrative disposition, unless there are special circumstances. If the administrative disposition based on the law, which is unconstitutional, is generally null and void, this would result in a significant threat to legal stability, and it cannot be deemed unreasonable even if it is in light of the principle of the rule of law.

In addition, the issue of whether an administrative disposition based on a law that is unconstitutional is null and void is separate from the retroactive effect of the decision of unconstitutionality, and the retroactive effect of the decision of unconstitutionality is recognized. Rather, an administrative disposition based on a law that is unconstitutional should not be deemed null and void, and the retroactive effect of the decision of unconstitutionality is not limited to an administrative disposition that is final and conclusive after the period of a lawsuit seeking revocation is already completed. Therefore, in a case where a lawsuit seeking nullification of an administrative disposition is filed on the grounds that a law that is the basis of such administrative disposition is unconstitutional, barring any other special circumstances, the court must dismiss the above request for nullification without determining whether the law is unconstitutional. Therefore, the judgment of the court below that the above provision of the Framework Act on National Taxes cannot be deemed null and void as a matter of course on the ground that the above provision of the Framework Act on National Taxes is unconstitutional is just in light of the above legal principles, and there is no error of law by misapprehending the legal principles

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)