[Judgment of the court below]

Cheong-gu private-use machines

Attorney Kim Ba-young

Busan High Court 97Gu17131 Revocation of Disposition of Imposing capital gains tax

Article 99 (3) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994 and amended by Act No. 5031 of Dec. 29, 1995) does not violate the Constitution.

1. Case summary and the object of the trial;

A. Case summary

(1) On March 20, 1984, the petitioner purchased 15 to 202.6 m2 with 16 m3 to 58.83m2 in Jinju-si on the 28th of the same month, Jinju-si, 144 m2 to 14 m2.83m2 on the above land, and acquired 97.91m2 on May 20, 198, and transferred the above land and building (hereinafter “the instant real estate”).

(2) Since the claimant has not been publicly notified at the time of acquiring the instant real estate, the head of the Jinju Tax Office: (a) Article 99 of the former Income Tax Act (wholly amended by Act No. 4803, Dec. 22, 1994; hereinafter referred to as the "amended Act") and Article 11 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994; hereinafter referred to as the "amended Enforcement Decree") calculated the transfer gains of each of the instant real estate by converting the standard market price of each of the instant real estate into the transfer gains of each of the instant real estate at the time of acquisition (hereinafter referred to as "the former Enforcement Decree") pursuant to Article 11 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1294, May 1, 1990; hereinafter referred to as "the former Enforcement Decree").

(3) The claimant filed a lawsuit seeking revocation of the instant disposition with the Busan High Court (97Gu17131) and filed an application for an adjudication of constitutionality (98 A199), which was unconstitutional since Article 99(3) of the amended Act was in violation of the principle of no taxation without law. However, on May 25, 1998, the claimant served a notice of the decision dismissing the said application, and on June 1, 1998, filed a petition for adjudication of constitutionality of the instant case in accordance with Article 68(2) of the Constitutional Court Act.

(b) Object of adjudication;

The object of the instant trial is whether Article 99(3) of the amended Act (hereinafter referred to as the “instant legal provisions”) is unconstitutional, and the contents of the instant legal provisions and the relevant Acts and subordinate statutes are as follows.

The standard market price prescribed in Articles 99 (Calculation of Standard Market Price), 96, 97 (1) 1, and 100 of the Amendment Act shall be as follows:

1. The assets indicated in subparagraph 1 of Article 94:

(a) Land:

The land price for each individual parcel (hereinafter referred to as the “individual land price”) calculated by the head of Si/Gun/Gu (referring to the head of autonomous Gu) under the Public Notice of Values and Appraisal of Lands, etc. Act on the basis of the officially announced land price under Article 10 of the same Act: Provided, That the land price for which no publicly announced individual land price exists shall be the amount appraised by a method as determined by the Presidential Decree, taking into account the publicly announced individual land price for neighboring similar land areas, and in the area where the

(b) Dried water;

Except as provided in item (c), the value based on the standard market price as prescribed by the Presidential Decree.

(c)for apartment houses or special-purpose buildings which share the land attached to buildings and own divided buildings, the value appraised by the method as determined by the Presidential Decree, notwithstanding the provisions of items (a) and (b), in case of houses or buildings located in the area as determined by the

2. Assets as prescribed in subparagraphs 2 through 5 of Article 94:

The value appraised by the method prescribed by Presidential Decree in consideration of the types, scale, transaction conditions of transferred assets, the appraised value of inherited property, etc.

(2) The term "ratio" in the proviso to paragraph (1) 1 (a) means the method of assessing by the amount calculated by multiplying the officially assessed individual land price as at the time of transfer or acquisition by the ratio prescribed by Presidential Decree.

(3) Matters necessary for the standard market price under each subparagraph of paragraph (1) shall be prescribed by Presidential Decree.

Where each provision that enters into force on January 1, 1995 and the provisions of the Enforcement Decree of the Income Tax before this Decree conflict with those of the former Enforcement Decree of the Income Tax before this Decree enters into force pursuant to the provisions of the proviso of Article 1 of Addenda of the Enforcement Decree of the Amendment (Relation to the previous

The standard market price at the time of acquisition of land acquired before this Decree enters into force shall be the price converted by the following formula:

A person shall be appointed.

2. Grounds for requesting, reasons for dismissing a request made by the court for an adjudication of unconstitutionality, and opinions of related agencies;

(a) Grounds for claim;

The legal provisions of this case violate Article 75 of the Constitution that sets the principle of prohibition of comprehensive delegation by stipulating that matters necessary for the standard market price shall be prescribed by the Presidential Decree, without setting specific limits on the calculation of the acquisition value of the land acquired before the individual land price is introduced. Since taxpayers violate predictability and legal stability in the calculation of the acquisition value of the land acquired before the individual land price is implemented, it violates the principle of no taxation without law and guarantee of property rights.

B. Reasons for dismissing a court’s motion for unconstitutionality

Article 99 of the amended Act provides for the detailed criteria for, or methods of, the standard market price by type of assets under paragraph (1), and delegates the matters necessary for the standard market price under each subparagraph of paragraph (3) of this Article to the Presidential Decree.

As the Constitutional Court has previously declared unconstitutional due to a violation of the principle of no taxation without law, Article 60 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter “former Act”) which is entirely different from the method of its provision. Thus, the legal provision of this case does not violate Articles 38 and 59 of the Constitution of the Republic of Korea or Article 75 of the Constitution that provides for the principle of no comprehensive delegation.

(c) Opinions of the Minister of Finance and Economy and National Tax Service;

On November 30, 1995, the Constitutional Court rendered a ruling of inconsistency with the Constitution as to Article 60 of the former Act and allowed provisional application of Article 60 of the former Act until the unconstitutionality of the Act was repealed. The legal provision of this case and Article 164 of the Enforcement Decree of the amended Act based thereon do not have any provision that can calculate the standard market price at the time of the acquisition of the land acquired before the public notice of the officially assessed land price was made on August 30, 1990, and thus, the provision constituting the basis for the disposition of this case is not the legal provision of this case but the Article 60 of the former Act. Accordingly, the determination of the unconstitutionality of the legal provision of this case is not the premise for the judgment of the relevant case, and thus, the claim of this case is unlawful.

3. Determination

A. Determination on the lawful requirements

In an adjudication on the constitutionality of a law or an adjudication on constitutional complaint in accordance with Article 68(2) of the Constitutional Court Act, whether a law at issue meets the requirements of the unconstitutionality of a law shall respect the legal opinion of the court, rather than a separate independent examination by the Constitutional Court. However, only if the legal opinion on the premise cannot be maintained clearly, the Constitutional Court may investigate it ex officio (see, e.g., Constitutional Court Decision 5-1, May 13, 1993; 5-1, 226, 239).

On the contrary of the record, the court of the case in question shall, with respect to the transfer made after the enforcement of the Act of the Amendment and the Enforcement Decree of the Amendment, with the case of the claimant 1.

Article 99 of the amended Act and Article 164 of the Enforcement Decree of the amended Act based on the provisions and Article 3, clarify that the standard market price should be calculated, and Article 11 of the Addenda of the former Enforcement Decree (3) of the amended Act provides that even under the amended Act, Article 11 of the Addenda of the amended Enforcement Decree, the legality of the disposition in this case is recognized since it continues to be valid as the Enforcement Decree pursuant to delegation under Article 99 (3) of the Addenda of the amended Enforcement Decree. Thus, it is clear that the court recognizes the legal provision in this case as the premise of judgment, and there is no circumstance to deem that

Therefore, the claim of this case disputing the unconstitutionality of the legal provision of this case satisfies the requisite of the judgment, so it is lawful.

B. Judgment on the merits

(1) The principle of no taxation without law and the limitation of delegated legislation

The principle of no taxation without law stipulated in Articles 38 and 59 of the Constitution requires that all of the taxpayers, taxable objects, tax bases and rates, as well as the procedures for imposing and collecting taxes, which are the elements of taxation that are considered to be an important matter or essential substance of the duty to pay capital gains tax, shall be clearly defined as possible by law. In calculating the tax base of capital gains tax, the standard market price shall be deemed to be an important matter of the duty to pay capital gains tax, at the same time as it is an important matter of the duty to pay capital gains tax, in that the existence and scope of the duty to pay capital gains tax is determined or it is impossible to predict the outline of the duty to pay capital gains tax, unless otherwise stipulated (see Supreme Court Decision 91Hun-Ba1, Nov. 30, 1995; 7-2, 562,

However, it is virtually impossible to stipulate all laws and regulations related to the imposition of taxes as a formal meaning without exception due to the complexity and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly, and the limit of professional and technical ability to adapt to time, and it is not in fact inappropriate to do so. Therefore, in extenuating circumstances, such as changes in economic reality or the need to immediately respond to the development of professional technology, etc., a formal law about matters to be stipulated

It is allowed to delegate to the administrative legislation with more fluenite than the percentage (Hun-Ba2 on June 26, 1996, Supreme Court Decision 8-1, 525, 532-53).

In addition, Article 75 of the Constitution provides that "the President may issue Presidential Decrees to the matters for which the scope of delegation is specifically determined by the Act," which provides the basis for such delegation legislation, and at the same time requires the delegation to be made individually and individually. Here, "specific scope" refers to the specific and clear provision as to the contents and scope to be stipulated in subordinate laws such as Presidential Decrees, etc. under the Act as much as possible, and any person can predict the outline of the contents to be stipulated in Presidential Decree, etc. from the relevant Act itself. Whether predictability exists shall not be determined with only one specific provision, but shall be determined with organic and systematic comprehensive determination of the whole relevant provisions, and specific and individual examination should be conducted according to the nature of each applicable law (see Constitutional Court Decision 9Hun-Ba52, Jul. 16, 1998; Supreme Court Decision 10-2, 172, 197).

(2) Whether the legal provisions of this case are unconstitutional

Article 99(1) and (2) of the amended Act provides that “The necessary matters concerning the standard market price under each subparagraph of paragraph (1) shall be prescribed by the Presidential Decree.” However, in determining the standard market price, Article 99(1) and (2) of the amended Act classify assets as land (Article 1(1)1(a), buildings (Article 1(1)1(b), land attached to a building as co-ownership of co-owned land, apartment houses for special purposes (Article 94(1)1(c) and assets (Article 94(1)2) of the Act on the Public Notice of Values, Appraisal, etc. of Lands, etc. and Local Tax Act (Article 1(1)1(a) and (b) of the Act, the method of calculating the standard market price shall be prescribed by the Presidential Decree, or if the standard for calculating the standard market price is not expressly prescribed by the Act in advance, only the detailed and detailed matters that have already been determined in advance by the method of calculating the calculation shall be prescribed by the Presidential Decree (Article 1(1)1)1(a)1)1)1)1)2 of the Act.

(1)(2)(1)(3)(2)(2)(1)(1)(3)(1)

Therefore, the legal provision of this case is directly stipulated in Article 99(1) and (2) of the amended Act, or is delegated to Presidential Decree only with respect to matters concerning the remaining standard market price except for the matters delegated individually by Presidential Decree from the relevant item. Thus, insofar as Article 99(1) and (2) of the amended Act provides for the principle of the standard market price by asset, it is reasonable to view that the Presidential Decree can sufficiently estimate the outline of the calculation method of the standard market price to be determined by Presidential Decree.

Thus, the legal provision of this case does not violate Article 75 of the Constitution that sets the principle of prohibition of comprehensive delegation by delegating the matter concerning the calculation of standard market price to the Presidential Decree, or violates Articles 38 and 59 of the Constitution that sets the principle of no taxation without law.

4. Conclusion

The legal provisions of this case are not in violation of the Constitution, and are so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)

Free will of the Republic of Korea, the United Kingdom of the Republic of Korea