[1] Whether Article 18 (1) of the former Administrative Litigation Act is unconstitutional (negative)

[2] Whether a disposition of imposition of the aggregate land tax, which differs from the taxable year, constitutes "a case of the same kind" under Article 18 (3) 1 of the Administrative Litigation Act and "a disposition related to the contents" under Article 18 (3) 2 of the same Act or "a disposition taken step for the same purpose" (negative)

[3] In a case where the entire ground of land is used as a park, whether the underground part is exempt from the aggregate land tax under Article 234-12 subparagraph 1 of the former Local Tax Act even if it is used for profit-making business (affirmative)

[1] Article 18(1) of the former Administrative Litigation Act (amended by Act No. 4770 of Jul. 27, 1994) provides that "where an administrative appeal can be filed pursuant to the provisions of Acts and subordinate statutes, a lawsuit seeking administrative appeals shall not be filed without going through an adjudication." Thus, in a lawsuit seeking revocation, the so-called requisite principle of administrative appeals even after the lapse of the adjudication. Thus, unless an administrative appeal as a procedure for the pre-trial trial has constitutional grounds, whether it is a premise to bring an administrative litigation via an administrative appeal shall be deemed as prescribed by Act pursuant to statutory reservation of Article 27(1) of the Constitution. Thus, the Administrative Litigation Act cannot be deemed as deviating from the scope of delegation of the Constitution on the ground that it is impossible for a citizen to bring an administrative lawsuit without going through an administrative appeal by adopting the necessary pre-determination principle, and the limitation of the period for filing an administrative appeal cannot be deemed as infringing upon the fundamental rights of the citizen to the extent that it actually makes it impossible or substantially difficult to bring an administrative lawsuit to the extent that it constitutes rejection of judgment, Article 27(1) of the Constitution.

[2] The disposition of different taxation for the taxable year cannot be deemed as the same kind of disposition under Article 18 (3) 1 of the Administrative Litigation Act, and each of the above dispositions shall not be deemed as a disposition related to each other's contents or a disposition carried out by step for the same purpose.

[3] Article 234-12 subparag. 1 of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) provides that the aggregate land tax shall not be imposed on the land used by the State, Do, Si, etc. for official or public purposes; however, the same shall not apply to the land used for profit-making business or the land part thereof where a fee is paid for use or a fee is not used directly for its original purpose. Thus, insofar as the whole land is used for public purposes as prescribed by the above provision by being used for a park as a park, even if the above land is used for profit-making business, it cannot be said that it is used for a fee or a profit-making business, and it does not constitute a case where part of the above land is used for any other purpose, and it does not constitute a case where it is used for any profit-making business. Thus, the aggregate land

[1] Articles 27(1) and (3), 37(2), and 107(3) of the Constitution of the Republic of Korea; Article 18(1) of the former Administrative Litigation Act (amended by Act No. 4770 of Jul. 27, 1994) / [2] Article 18(3)1 and 2 of the Administrative Litigation Act / [3] Article 234-12 subparag. 1 of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994)

[2] Supreme Court Decision 94Nu4653 delivered on November 8, 1994 (Gong1994Ha, 3292), Supreme Court Decision 96Nu4671 delivered on August 23, 1996 (Gong1996Ha, 2918), Supreme Court Decision 96Nu753, 7540 delivered on November 28, 1997 (Gong1998Sang, 127)

Hyundai Construction Co., Ltd. (Law Firm Kim & Kim, Attorneys Kim In-ap et al., Counsel for the defendant-appellant)

The head of Jongno-gu Seoul Metropolitan Government

Seoul High Court Decision 94Gu37891 delivered on December 17, 1996

The appeal is dismissed. The costs of appeal are assessed against each appellant.

1. We examine the Plaintiff’s grounds of appeal.

A. Regarding ground of appeal No. 2

Article 27 (1) of the Constitution provides that "All citizens shall have the right to a trial by law" and Article 27 (3) of the Constitution provides that "All citizens shall have the right to a prompt trial by a judge who is determined by the Constitution and laws," and that "All citizens shall have the right to a prompt trial by a judge who is determined by the Constitution and laws, in accordance with the contents and procedures prescribed by the Constitution and Acts, the right to a prompt trial shall be guaranteed, while Article 107 (3) of the Constitution provides that "the first sentence of Article 107 (3) of the Constitution may conduct an administrative

Article 18(1) of the former Administrative Litigation Act (amended by Act No. 4770, Jul. 27, 1994; hereinafter the same) provides that "if an administrative appeal against a disposition can be filed under the provisions of Acts and subordinate statutes, it shall not be filed without going through an adjudication thereon." Thus, in a revocation lawsuit, the so-called requisite principle of administrative appeals even after the lapse of the adjudication. Thus, insofar as an administrative appeal as a prior trial procedure has constitutional grounds, it is deemed that the transit of the administrative appeal is a prerequisite for filing an administrative litigation as prescribed by Act pursuant to statutory reservation of Article 27(1) of the Constitution. Thus, the Administrative Litigation Act cannot be instituted without filing an administrative litigation by adopting the necessary exclusive administrative litigation principle. Thus, the limitation of the period for filing an administrative appeal cannot be seen as deviating from the scope of delegation by the Constitution. Thus, if it is deemed that the period for filing an administrative appeal cannot be seen as substantially impossible or substantially infringed upon the fundamental rights of the right to claim an administrative trial, the legal relationship of the administrative appeal cannot be determined as soon after the legislative litigation procedure's.

B. Regarding ground of appeal No. 1

The aggregate land tax is a profit-free tax having the capacity to pay taxes on the property owned by the taxpayer, and the liability to pay taxes arises independently each year during the possession of the property concerned. Thus, different taxation dispositions are separate dispositions, respectively. Even if the objects subject to taxation are identical with the taxpayer, the tax base is different depending on changes in the value of the objects subject to taxation each year; the method of taxation (comprehensive aggregate, separate aggregate, separate taxation) vary depending on changes in the size or value of the whole land owned by the taxpayer; and the tax rate vary depending on changes in the size or value of the whole land owned by the taxpayer; accordingly, the dispute over the imposition disposition may vary each other as a result of the difference in the amount of taxes each year. Thus, each disposition subject to taxation cannot be deemed as the same kind of case as provided in Article 18 (3) 1 of the Administrative Litigation Act, and even if each of the above dispositions is jointly at issue, the adjudication agency in the previous trial procedure cannot be deemed as having rendered a new decision or ruling based on the previous evidence newly formed by the previous 4th trial procedure, and thus, it cannot be held that the previous imposition disposition procedure should be conducted even after the final judgment procedure.

The court below's decision that the disposition of imposition, including the aggregate land tax in 193 and the aggregate land tax in 194, imposed on the plaintiff with respect to the land owned by the plaintiff, such as the land in this case, should be conducted separately in relation to the disposition of imposition in 1994, even if the subject matter of taxation is identical to the taxpayer and the subject matter of taxation were not identical to that in the same case as provided by Article 18 (3) 1 of the Administrative Litigation Act, and even if the subject matter of taxation in 1993 was under the prior trial procedure for the disposition of imposition in 193, is just in accordance with the above legal principles, and it cannot be deemed that each of the above dispositions cannot be seen as a disposition related to each other's contents or a phased progress for the same purpose, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal No. 1, and all of the decisions invoked in the grounds for appeal are different from the case

2. The Defendant’s grounds of appeal (the grounds of appeal for supplement submitted after the expiration of the period are to the extent of supplement) are examined.

According to the reasoning of the judgment below, since the plaintiff company received a building permit for the above 9-7 meters from the head of Jongno-gu Seoul Metropolitan Government on July 29, 1982 to build the apartment building and the underground floor of this case, such as parking lots and swimming pools to be constructed, from the head of Jongno-gu Seoul Metropolitan Government on the ground of the above 1982. The land in this case was originally announced as a slope on the left side of 00 high schools, and the parking lot and swimming pool constructed under the ground in this case were originally topographical, and if the original topography were, a parking lot or swimming pool installed under the ground in this case were entered the underground, and part of the above 9-7-7 meters of the ground surface was exposed to the employees of the above 9-7th ground surface, and it was impossible for the plaintiff company to directly use the above 9-7th ground surface and to directly use the above 9-7th ground surface and to provide the plaintiff company with the above 9-2's underground parking lot for public use.

In light of the use of the ground and underground of the land of this case, insofar as the whole ground and its ground are being used as a park, it is clear that the construction of a swimming pool, etc. below the ground of the land of this case is the use of the ground of this case. Since the swimming pool and the parking lot have a horizontal range between the ground surface and the neighboring land, the lower court is justifiable to regard the above buildings as underground buildings, and there is no error of misunderstanding of facts as alleged in the ground of appeal No. 1, and therefore, the above assertion is without merit.

Article 234-12 subparag. 1 of the former Local Tax Act provides that the aggregate land tax shall not be imposed on the land used by the State, Do, Si, etc. for official or public purposes, and where the land is used for profit-making business or for fee-making business, and a part of the land is not used directly for its original purpose, the same shall not apply to such land. As long as the whole ground area of the land of this case is used for public purposes as prescribed by the above provision by being used as a park, even if the Plaintiff uses the underground part of the land of this case as above, it cannot be said that the use as a park of this case is used for a fee or for profit-making business, and it cannot be said that the underground part of the land of this case is used for any other purpose, and it does not constitute a case directly used for the

Therefore, the court below erred in finding that a part of the land in this case is not used directly for its original purpose and that the value of the land in this case is subject to aggregate land tax. However, the conclusion that the whole revocation of the tax disposition in 1993 on the land in this case is justifiable, and therefore, the defendant's ground of appeal No. 2 that there was an error in the assessment method of the value of the ground and underground use of the land in this case on the premise that it is possible to impose a rate of tax on the underground use value of the land

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

Justices Lee Jae-soo (Presiding Justice)