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

[2] In a case where the land is not subject to taxation as of the end of the taxable period, whether the tax amount payable for the scheduled period under the amended Land Excess Gains Tax Act shall be refunded (affirmative)

[1] According to the Constitutional Court's decision of inconsistency with the Constitution of the former Land Excess Gains Tax Act (amended by Act No. 4807 of Dec. 22, 1994) (amended by Act No. 4807 of Jul. 29, 1994), the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), and the Enforcement Rule of the same Act (amended by Ordinance of the Prime Minister No. 506 of May 195), each provision of the same Act applies not only to the case in question but also to the case in which the taxpayer is not unfavorably treated.

[2] Even if the land is not subject to taxation as of the end of the taxable period, as long as 50/100 of the amount equivalent to the land excess profit in the pertinent taxable period among the amount of tax payable for the scheduled taxable period is deleted under the proviso of Article 24(1) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994), the portion in the overall proviso of Article 24(1) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) is deleted, the total amount of tax payable for the scheduled taxable

[1] Article 107 (1) of the Constitution, Article 47 (2) of the Constitutional Court Act / [2] Article 24 (1) of the Land Excess Profit Tax Act, Article 51 (1) of the Framework Act on National Taxes

[1] Supreme Court Decision 92Hun-Ba49, 52 delivered on July 29, 1994 (Hun-Ba7, 505), Supreme Court Decision 93Nu13810 delivered on June 28, 1996 (Gong1996Ha, 2412), Supreme Court Decision 93Nu1713 delivered on July 30, 1996 (Gong1996Ha, 2718), Supreme Court Decision 96Nu8659 delivered on February 14, 1997 (Gong197Sang, 820), Supreme Court Decision 96Nu2132 delivered on July 25, 1997

Plaintiff

Korea

Seoul High Court Decision 94Na22097 delivered on November 15, 1995

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

The grounds of appeal are examined.

In the case of the Constitutional Court Order 92Hun-Ba49, 52 (Consolidation) on July 29, 1994, the former Land Excess Gains Tax Act (No. 4177, Dec. 30, 1989; Act No. 4561, Jun. 11, 1993; Act No. 4563, Jun. 11, 1993) provides that when the Constitutional Court makes a decision not to incorporate the unconstitutional elements pointed out in the decision with respect to the land above 92Hun-Ba49, 52, the former Land Excess Gains Tax Act (No. 4807, Dec. 22, 1994; Presidential Decree No. 1470, Dec. 31, 1994; Presidential Decree No. 14770, Dec. 16, 1995; Presidential Decree No. 1986, Jun. 16, 196>

Therefore, in this case brought an action on February 16, 1994 prior to the decision of inconsistency with the above Constitution on the former Land Excess Gains Tax Act, the court below's decision to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the application of the proviso of Article 24 (1) of the amended Land Excess Gains Tax Act.

The ground of appeal is without merit.

Therefore, the appeal is dismissed 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 Yong-hun (Presiding Justice)