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(영문) 헌재 1998. 2. 27. 선고 96헌마400 결정문 [지방세법 제234조의12 제2호 등 위헌확인]
[결정문] [전원재판부]
Cases

96Hun-Ma400 Confirmation of unconstitutionality such as Article 234-12 subparagraph 2 of the Local Tax Act

Claimant

○ ○ Amnesty

Representative ○ 00 0

Attorney Cho Jae-chul, Law Firm

Attorney Lee Jae-hoon

Text

The appeal of this case is dismissed.

Reasons

1. Case summary and claimant's assertion

On October 10, 1992, the claimant was subject to the imposition of the aggregate land tax for the 92-year portion. According to the taxation details, among the land owned by the claimant, 101 parcel, such as ○○○○○, 546, etc., and 5,035,297 square meters, among the land owned by the claimant, is directly used for the applicant’s unique duties (a religious business) of the temple, and thus, the land subject to non-taxation or 28 parcel, such as 28,194 square meters and 359 square meters and 45 square meters and 45 square meters, such land is not subject to non-taxation.

According to Article 234-12 (2) and (7) of the Local Tax Act and Article 194-8 (6) of the Enforcement Decree of the same Act, the claimant can decide whether the head of the Si/Gun/Gu is exempt from non-taxation depending on the interpretation of the taxation administrative agency. The claimant shall be delegated with blank delegation in violation of Article 75 of the Constitution, and the matters to be prescribed by law shall be delegated to the enforcement decree.

As a result, the constitutional complaint on December 10, 1996 was filed on the ground that Article 59 of the Constitution was against the principle of no taxation without law because it was left to the principle of administrative convenience.

2. Determination

On October 10, 1992, the claimant has already been notified of imposition of the aggregate land tax for the year 192 aggregate land tax imposed on the land owned by the claimant on the basis of the provisions of the law of this case.

A request for adjudication on constitutional complaint under a direct law shall be filed within 60 days from the date on which the cause occurred if the cause occurred after the enforcement of the law, and within 180 days from the date on which the cause occurred if the person who was infringed upon the fundamental rights due to the occurrence of the cause occurred after the enforcement of the law (see, e.g., Constitutional Court Order 89Hun-Ma20, Jun. 25, 1990; Constitutional Court Order 89Hun-Ma136, Apr. 14, 1992; etc.). The claimant, at the latest, knew on Oct. 10, 1992, which was the date on which the notice of imposition of the aggregate land tax in question was given, that Article 234-12, 2, and 7 of the Local Tax Act infringed on the claimant's fundamental rights. Accordingly, the request for adjudication is unlawful after the lapse of 60 days later than the expiration of the period.

On the other hand, Article 194-8 subparagraph 6 of the Enforcement Decree of the Local Tax Act concerning whether the claimant is the object of another trial is promulgated only by Presidential Decree No. 14878 on December 30, 1995, and there was no time when the claimant was subject to the above taxation disposition. Accordingly, a petition for trial on this part is unlawful as it has no own relevance to the claimant.

Therefore, the appeal of this case is unlawful, so it is decided as per Disposition by the unanimous opinion of all Justices.

February 27, 1998

Judges

Justices Kim Yong-han

State Judgment Officer Kim Jong-hee

Judges Lee Jae- Goods

Justices Cho Jong-soo

Justices Park Jong-sik

Senior Justice Lee Jung-soo

Justices Shin Jae-sik

Justices Lee Young-soo

Justices Han Han-tae

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