[1] In a case where a decision of inconsistency with the Constitution was rendered to the provisional application or the suspension of application of a non-permanent provision but the amendment was made without the unconstitutionality being unconstitutional but without the improvement legislation, the time when the legal provision becomes null and void / Where a decision of inconsistency with the Constitution was rendered with the provisional application of a non-permanent provision but the provisional application of a non-permanent provision became null and void not with the effect of the part ordering provisional application but with the suspension of application, whether the legal provision becomes null and void retroactively from the time when the decision of inconsistency with the Constitution was made (affirmative)

[2] In a case where: (a) an attorney-at-law holding a license for tax accountant Gap applied for renewal of registration of tax agent agent services to the Commissioner of the National Tax Service; (b) the Commissioner of the National Tax Service rejected Gap’s application pursuant to Articles 6(1) and 20(1) of the Certified Tax Accountant Act; (c) during the lawsuit seeking revocation of disposition, Gap filed an application for adjudication on the unconstitutionality of the aforementioned legal provisions; (d) the court below rejected Gap’s application for adjudication on the unconstitutionality of the legal provisions; and (e) the Constitutional Court declared that the above legal provisions infringed upon an attorney-at-law’s freedom to choose occupation; and (e) the above legal provisions were continuously applied until the legislative amendment was made on December 31, 2019; (b) but the National Assembly did not amend the above legal provisions until the amendment was made, the Court rejected Gap’s application for renewal of registration of tax agent agent services on the ground that the above legal provisions became retroactively null and void as at the time when the decision of inconsistency was made.

[1] Even if a provisional decision of inconsistency with the Constitution was rendered with respect to a non-permanent provision but the amendment was made without the unconstitutionality being eliminated and the amendment became invalidated, its effect is limited to the future, and there is no reason to deal with the same differently. Meanwhile, when the amendment was made without the amendment of the unconstitutionality, the decision of inconsistency with the Constitution and the time when the legal provision becomes null and void, the legal provision must retroactively become null and void as of the time when the decision of inconsistency with the Constitution becomes null and void. Even if a provisional decision of inconsistency with the Constitution is rendered with the Constitution with respect to a non-permanent provision, if the legal provision becomes null and void, and the legal provision becomes null and void retroactively as of the time when the decision of inconsistency with the Constitution becomes null and void, if the legal provision becomes null and void, and the legal provision becomes null and void retroactively as of the time when the decision of inconsistency with the Constitution becomes null and void.

[2] In a case where Gap, a certified tax accountant Gap, filed an application for renewal of registration of tax agent agency with the Commissioner of the National Tax Service, but the Commissioner of the National Tax Service rejected Gap's application pursuant to Articles 6 (1) and 20 (1) of the Certified Tax Accountant Act, Gap filed an application for adjudication on the unconstitutionality of the above legal provisions during the lawsuit seeking revocation of disposition, and the court below rejected Gap's application for adjudication on the unconstitutionality of the legal provisions, and the Constitutional Court declared that the above legal provisions infringed upon the attorney's right to choose occupation and freedom of choice as a certified tax accountant, and the above legal provisions were applied continuously until the legislative amendment was made on December 31, 2019, but the National Assembly did not amend the above legal provisions until the amendment was made by the National Assembly, the case holding that the Constitutional Court's ruling of inconsistency with the Constitution did not affect the conclusion that the above legal provisions were a ground provision allowing the registration of a general certified tax accountant, and on the contrary, the above legal provisions which were completely prohibited and uniformly applied to Gap's tax agent.

[1] Article 47 of the Constitutional Court Act / [2] Articles 6(1) and 20(1) of the Certified Tax Accountant Act, Article 47 of the Constitutional Court Act

[1] Supreme Court Decision 2012Do7455 Decided October 11, 2012 (Gong2012Ha, 1864)

Plaintiff

Seoul Regional Tax Office

Seoul High Court Decision 2014Nu65617 decided June 12, 2018

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

The grounds of appeal are examined.

1. Relevant Acts and the circumstances of this case;

The reasoning of the lower judgment and the record reveal the following facts.

A. Article 3 of the Certified Tax Accountant Act (amended by Act No. 11209, Jan. 26, 2012) provides that “A person who has passed a qualifying examination for certified tax accountants under Article 5 (No. 1) and “a person who has the qualification as an attorney (No. 3)” are qualified as a certified tax accountant (However, subparagraph 3 was deleted at the time of the amendment by Act No. 15288, Dec. 26, 2017).

Article 6(1) of the Certified Tax Accountant Act (amended by Act No. 11610, Jan. 1, 2013) provides that "where a person qualified as a certified tax accountant intends to commence tax agent after passing a qualifying examination for certified tax accountant under Article 5, he/she shall register matters prescribed by Presidential Decree with the Certified Tax Accountant Register kept at the Ministry of Strategy and Finance (amended by Act No. 16103, Dec. 31, 2018); and Article 20(1) of the Certified Tax Accountant Act (amended by Act No. 9348, Jan. 30, 209) provides that "no person, other than those who have registered pursuant to Article 6, may conduct tax agent services unless he/she has registered pursuant to Article 3 of the Attorney-at-Law Act, and where he/she is registered pursuant to Article 20-2(1)."

Article 6(1) and the main sentence of Article 20(1) of the Certified Tax Accountant Act (hereinafter collectively referred to as the “instant legal provision”), which combines the two provisions, provides that only a person who has passed a qualifying examination for certified tax accountants (hereinafter referred to as “general certified tax accountant”) may be registered with the Certified Tax Accountant Register, and that a person who is not registered may not provide tax agent services, thereby enabling an attorney-at-law holding a qualification as certified tax accountant to provide all tax agent services.

B. From December 31, 2003 to December 31, 2017, an attorney qualified as a certified tax accountant (referring to an attorney qualified as a lawyer, excluding a person who passed a judicial examination at the time of December 31, 2003 or was a judicial trainee) filed an application for renewal of registration of tax agent services with the Commissioner of the National Tax Service. On May 21, 2014, the Defendant rendered the instant disposition rejecting the Plaintiff’s application pursuant to the instant legal provisions. While the lawsuit seeking revocation of the instant disposition is pending, the Plaintiff filed an application for adjudication on the unconstitutionality of the instant legal provisions with the lower court, and the lower court accepted the application and made a request for adjudication on the unconstitutionality of law.

C. On April 26, 2018, the Constitutional Court: (a) determined that the instant legal provision infringes on the freedom of choice of an attorney-at-law qualified as a certified tax accountant; (b) declared that the instant legal provision is inconsistent with the Constitution; and (c) decided that the provision of the instant legal provision continues to be applied until the legislative amendment was made by the legislator with the deadline for December 31, 2019 (see Constitutional Court en banc Decision 2015Hun-Ga19, Apr. 26, 2018; hereinafter “Unconformity with the Constitution”). However, the National Assembly did not amend the instant legal provision of the Certified Tax Accountant Act by December 31, 2019.

2. Whether the instant disposition is lawful

A. Although a decision of inconsistency with the Constitution was rendered provisionally as to a non-permanent provision but the amendment was made without the unconstitutionality being unconstitutional but the amendment became null and void, its effect is limited to the future, and there is no reason to treat the provision differently (see Supreme Court Decision 2012Do7455, Oct. 11, 2012). Meanwhile, in a case where the amendment was made without the unconstitutionality of the non-permanent provision being declared as a decision of inconsistency with the Constitution but the amendment was made without the improvement of the unconstitutionality, it is necessary to prevent any legal gap between the time when the decision of inconsistency with the Constitution and the time when the legal provision becomes null and void, and such legal provision becomes retroactively null and void. If a provisional decision of inconsistency with the Constitution becomes null and void even if a provisional decision of inconsistency with the Constitution becomes final and void, if the legal provision becomes null and void, and if the legal provision becomes null and void due to the suspension of its application.

B. According to the unconstitutionality of the instant legal provisions, the Constitutional Court’s ruling of inconsistency with the Constitution as to the instant legal provisions, and the grounds for provisional application, etc., it is necessary to allow the registration of a general tax accountant to continue to apply the instant legal provisions until December 31, 2019, even though the Constitutional Court confirmed the unconstitutionality of the instant legal provisions. The grounds for respect of legislative formation rights concerning the scope of tax agent services to be allowed to an attorney-at-law holding a qualification as a certified tax accountant, the specific procedures, contents, etc. necessary to grant the authority to act as an agent are related to the need to make a decision of inconsistency with the Constitution as to the instant legal provisions, which contains the purport of promoting legislative improvement instead of making a decision of inconsistency with the Constitution as to a simple decision of unconstitutionality as to the instant legal provisions, and

The decision of inconsistency with the Constitution of the Republic of Korea to which the statutory provisions of this case were continuously applied refers to a provision that permits the continuous registration of a general certified tax accountant. On the contrary, the part that prohibits the full and uniform application of the legal provisions of this case to a certified tax accountant qualification attorney is still suspended.

C. In light of the above legal principles, since the legal provision of this case prohibits the Plaintiff’s tax agent service agent service as a qualified tax accountant from becoming retroactively and uniformly null and void retroactively to the time when the decision of inconsistency with the Constitution was rendered, the legal provision of this case cannot be applied as it is to the instant case. Therefore, the Defendant’s disposition of this case rejecting the Plaintiff’s application for renewal of the Plaintiff’s tax agent service registration based on the premise that the legal provision of this case is applied.

D. Although the reasoning of the lower judgment is inadequate, the conclusion that the instant disposition was unlawful is justifiable. The first ground for appeal on a different premise is rejected.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)