[1] In a case where a decision of unconstitutionality is made on a legal provision that served as the basis of a tax imposition after a taxation disposition, whether a disposition on default for the enforcement of the relevant tax claim is null and void automatically (affirmative)

[2] In a case where the tax authority imposed tax on the delinquent national tax of Gap corporation on Eul pursuant to Article 39 (1) 2 (c) of the former Framework Act on National Taxes, and later the Constitutional Court rendered a decision of unconstitutionality as to the above provision, but the tax authority made a seizure disposition on Eul's deposit claim to execute a tax claim, the case affirming the judgment below holding that the seizure disposition is null and void as a matter of course

[1] [Majority Opinion] Article 47(1) of the former Constitutional Court Act (amended by Act No. 10546, Apr. 5, 2011) provides that “The decision of unconstitutionality of a law shall bind a court, other State agencies, and local governments.” In light of the binding force of such decision of unconstitutionality and the systematic request of the legal order based on which the Constitution is the highest norm, State agencies and local governments may not take a new administrative disposition based on the provisions declared unconstitutional, and even a subsequent disposition based on a legal relationship already formed before the decision of unconstitutional may not be allowed if it creates and expands a new unconstitutional legal relationship. Therefore, in a case where a legal provision that served as the basis for tax imposition is declared unconstitutional, even if a tax claim becomes final and conclusive after the lapse of the filing period of a lawsuit against the decision of unconstitutionality, and a separate provision on the basis of a disposition of unconstitutionality for the execution of a tax claim itself, it should no longer be deemed that a new disposition of unconstitutionality has been made after the decision of unconstitutional as a serious and objective defect.

[Dissenting Opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Kim Yong-deok] If the Constitutional Court, after taking an administrative disposition based on the provisions of any Act, decided that the provision was unconstitutional, an administrative disposition would result in a subsequent defect. However, barring any special circumstance, the circumstance that the provision is in violation of the Constitution cannot be objectively apparent before the Constitutional Court renders a decision of unconstitutionality. Thus, such defect is only a ground for revocation of an administrative disposition, and it cannot be deemed as a ground for invalidation. If an independent act was carried out for a certain administrative purpose step by step, the defect of the preceding disposition cannot be seen as naturally succeeded to the subsequent disposition unless there is a defect which is void or non-existent. It is separate administrative disposition from the preceding disposition, so it is reasonable to view that the effect of the subsequent disposition of unconstitutionality cannot be asserted, except for the cases where the preceding disposition is null and void, and the provisions related to the disposition of unconstitutionality are not applied directly to the provisions related to the disposition of unconstitutionality, and thus, it does not conform with the Majority Opinion 20-1.

[2] As to the delinquent national tax of Gap corporation, in a case where the tax authority imposed tax on Eul, a lineal descendant Eul who lives with Gap corporation's largest shareholder, on Eul, as the secondary taxpayer under Article 39 (1) 2 (c) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998), and the disposition became final and conclusive. Since the above provision was later ruled unconstitutional by the Constitutional Court, but the tax authority issued a seizure disposition on Eul's deposit claim to execute tax claims, the case affirming the judgment below that the attachment disposition is void as a matter of course on the premise that the government agency's additional actions for enforcement of the unconstitutional law should not be used.

[1] Article 47(1) and (2) of the former Constitutional Court Act (Amended by Act No. 10546, Apr. 5, 2011); / [2] Article 47(1) and (2) of the former Constitutional Court Act (Amended by Act No. 10546, Apr. 5, 201); Article 39(1)2(c) of the former Framework Act on National Taxes (Amended by Act No. 5579, Dec. 28, 1998); Article 39(1)2(c) of the former Framework Act on National Taxes (see current Article 39 subparag. 2 of the Framework Act on National Taxes; Article 20 of the Enforcement Decree of the Framework Act on National Taxes)

Plaintiff (Attorney Kim Jin-jin, Counsel for the plaintiff-appellant)

Head of Seocho Tax Office

Seoul High Court Decision 2009Nu37007 decided May 19, 2010

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

The grounds of appeal are also examined.

1. In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law and its purpose, meaning, function, etc. of the law and should be reasonably examined from a teleological perspective in determining whether the defect is significant and obvious (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court en banc Decision 2006Du330, Mar. 16, 2006).

Meanwhile, Article 47(1) of the former Constitutional Court Act (amended by Act No. 10546, Apr. 5, 2011; hereinafter “former Constitutional Court Act”) provides that “The decision of unconstitutionality of a law shall bind courts, other State agencies, and local governments.” In light of the binding force of such decision of unconstitutionality and the systematic request of a legal order based on which the Constitution is the highest norm, State agencies and local governments may not take a new administrative disposition based on the legal provisions declared unconstitutional, and it is reasonable to deem that any subsequent disposition based on a legal relationship already formed before the decision of unconstitutional may not be permitted if it creates and expands a new unconstitutional legal relationship.

Therefore, in a case where a legal provision that served as the basis for the imposition of a tax is declared as unconstitutional, even though the taxation disposition was made prior to the decision of unconstitutionality, the taxation claim became final and conclusive after the period for filing a lawsuit against the said taxation disposition has already expired, and no separate decision of unconstitutionality was made with respect to the relevant provision on the basis of the disposition on default for the enforcement of a tax claim, the commencement or continuation of a new disposition on default for the enforcement of a tax claim after the decision of unconstitutionality is no longer permissible, and further, a disposition on default that violates the validity of such decision of unconstitutionality should be

According to the reasoning of the judgment of the court of first instance partially accepted by the court below, on October 22, 1997, the defendant issued a tax disposition on the ordinary delinquent national tax (hereinafter "instant tax disposition") against the plaintiff on the ground that the plaintiff constitutes the second taxpayer under Article 39 (1) 2 (c) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998, hereinafter "the former Framework Act on National Taxes"). However, the Constitutional Court declared that Article 39 (1) 2 (c) of the former Framework Act on National Taxes violates the Constitution through the decision of May 28, 1998, and thereafter, the defendant issued a tax disposition on the plaintiff's ordinary delinquent national tax (including additional tax) in order to collect the delinquent amount and the delinquent amount (hereinafter "the plaintiff's deposit claim in this case").

On the premise of such facts, the lower court determined that the instant attachment disposition, which was rendered after the decision of unconstitutionality on the grounds of the provision on the grounds of the instant taxation, constitutes an administrative disposition, which is void as a matter of course, by the Defendant’s additional act for the final enforcement of the instant taxation disposition, based on the premise that, after the decision of unconstitutionality, the status of application of the unconstitutional law is neglected in terms of the relief of citizens’ rights, or that the State agency’s additional act for enforcement

In light of the above legal principles and records, although the court below's explanation of some reasons is not appropriate, the court below's conclusion that the attachment disposition in this case was null and void as a matter of course on the premise that the government agency's additional actions for the final enforcement of the unconstitutional law should not be used, after the decision of unconstitutionality is made. In so doing, the court below did not err by misapprehending the legal principles as to the grounds for invalidation of the attachment disposition which was made after the decision of unconstitutionality as to the provisions

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 judges, except for a dissenting opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Kim Yong-deok.

2. Dissenting Opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Kim Yong-deok

In light of the binding force of the decision of unconstitutionality as provided by Article 47(1) of the former Constitutional Court Act and the systematic request of the legal order that provides the Constitution as the highest norm, the Majority Opinion states that a provision on the basis of the decision of unconstitutionality is only a provision on the disposition of unconstitutionality, and that provision on the basis of the disposition of delinquent taxes based on the disposition of unconstitutionality is not a provision on the disposition of unconstitutionality, even if there is no provision on the basis of the disposition of unconstitutionality but a provision on the disposition of delinquent taxes

First, if the Constitutional Court, after an administrative disposition based on a provision of a law, decides that the provision is unconstitutional, the administrative disposition would result in the unconstitutionality of the provision. However, the circumstances generally violating the Constitution cannot be deemed objectively obvious before the Constitutional Court renders a decision on the unconstitutionality of a law. Thus, barring any special circumstance, such defect is only a ground for revocation of an administrative disposition and does not constitute a reason for the unconstitutionality of a law (see, e.g., Supreme Court Decisions 92Nu9463, Oct. 28, 1994; 2007Du16202, May 14, 2009).

In addition, in a case where an independent act was conducted by stages for a certain administrative purpose, the defect of the preceding disposition cannot be deemed to be succeeded to the subsequent disposition as a matter of course except when there is a defect that is a legitimate invalidation or non-existence in the preceding disposition (see Supreme Court Decisions 4292Du73, Oct. 26, 1961; 98Du9530, Nov. 27, 2001).

Inasmuch as the instant taxation disposition and the instant attachment disposition are separate administrative dispositions based on the previous Supreme Court precedents, it is reasonable to view that the validity of the instant attachment disposition, which is subsequent disposition on the ground of the defect in the instant taxation disposition, cannot be asserted, except in cases where the instant taxation disposition, which is a prior disposition, is null and void as a matter of course. Furthermore, the instant taxation disposition is valid as seen earlier.

Second, according to Article 47 of the former Constitutional Court Act on the effect of the decision of unconstitutionality, the decision of unconstitutionality of a law is binding on courts and other state agencies and local governments (paragraph (1)), but the law or provisions of a law decided as unconstitutional shall lose its effect from the date on which the decision is made. However, in the case of the law or provisions of a punishment, it is a principle that such effect shall lose its effect retroactively (Paragraph (2). Thus, the binding effect of the decision of unconstitutionality of state agencies and local governments shall also be interpreted to the extent that the effect of

However, a disposition on default, such as attachment, is a separate administrative disposition different from a disposition on default, and is not directly applied to the provisions related to the disposition on default, so the binding force of the decision on unconstitutionality of the provisions related to the disposition on the basis of taxation is irrelevant to the disposition on default

In addition, in a case where the retroactive effect of a decision of unconstitutionality on a previous tax disposition is limited and its validity does not extend, the pertinent tax disposition is deemed valid and unconstitutional. Therefore, the disposition on default based on the said tax disposition is not unconstitutional and does not violate the binding force of the decision of unconstitutionality. Therefore, in order to suspend the proceeding of the disposition on default based on the tax disposition, a separate legislation is required to expand the scope of the effect of the decision of unconstitutionality on the grounds of the tax disposition, as in the case of penal law, and to exclude the effect of the tax disposition

Nevertheless, if the majority opinion, as to a valid taxation disposition, prohibits the progress of the procedure for disposition on default and practically extinguishs the effect of the taxation disposition, it is possible to point out that the binding range is excessively expanding, and that it does not conform to the purport of the main sentence of Article 47(2) of the former Constitutional Court Act that limits the retroactive effect of the decision on unconstitutionality.

Third, compared to some legislative cases of foreign countries, Germany, in principle, has a retroactive effect on the decision of unconstitutionality, but it does not have a retroactive effect on the legal relationship that became final and conclusive at the time of the decision of unconstitutionality, but there is a express provision that the enforcement pursuant to the provisions of the law that declared the decision of unconstitutionality cannot be conducted. The majority opinion ultimately states that the relevant provisions of Korea should be interpreted and operated like Germany, which has explicit provisions as above, but it is difficult to accept such interpretation theory in

Therefore, as long as there is no ground to invalidate a tax disposition that constitutes a preceding disposition and the ground provision for a disposition on default exists effective, the disposition on default cannot be deemed unlawful solely on the ground that the Constitutional Court rendered a decision of unconstitutionality as to the ground provision for a tax disposition.

In light of the above legal principles, the pertinent tax disposition does not have any ground for invalidation as a matter of course, and the pertinent provision on the basis of the subsequent disposition of arrears pursuant to the said tax disposition remains valid. Unless there is any express provision excluding the executive force of the unconstitutional law, such as some foreign legislation cases, the instant tax disposition cannot be deemed null and void as a matter of course.

Nevertheless, after the decision of unconstitutionality, the court below held that the seizure disposition of this case, which was made after the decision of unconstitutionality as to the provisions on the basis of the taxation disposition of this case, was null and void as a matter of course on the grounds that the state agency should not neglect the status of the application of the unconstitutional law in terms of the relief of citizens' rights or make any additional action of the state agency for the enforcement of the unconstitutional law. In this regard, the court below erred by misapprehending the legal principles on the grounds for invalidation of the seizure disposition, which was made after the decision of unconstitutionality as to

Justices Yang Sung-tae (Presiding Justice)