[1] In a case where the imposition of excess ownership charges, the attachment disposition, and the attachment registration based thereon are made and each disposition becomes final and conclusive prior to the decision of unconstitutionality on the whole of the former Act on the Ownership of the Housing Site, whether the subsequent procedures for disposition on default may proceed after the decision of unconstitutionality (negative), and whether the payment of dividends may be made in the discretionary auction procedure

[2] The validity of Paragraph (3) of the Addenda to the repealed Act after the decision of unconstitutionality on the whole of the former Act on the Ownership of a Housing Site is made

[1] Under the former Act on the Ownership of Housing Sites (repealed by Act No. 5571 of Sep. 19, 198), the excess ownership charges is not a kind of tax, but a monetary burden imposed as a sanction for the violation of the obligation under the above Act, and merely is a compulsory means of enforcement to realize the purpose of the above Act. Before the repeal of the above Act, the person liable for payment of the excess ownership charges under Article 30 of the above Act does not fully pay the excess ownership charges and additional charges within the designated time limit after receiving a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected. However, Article 30 of the above Act cannot become effective from the date of the decision of unconstitutionality on April 29, 199, because the person liable for payment of the excess ownership charges under the above Act does not fully pay the excess ownership charges and additional charges within the designated time limit.

[2] Paragraph (3) of the Addenda of the repealed Act (Act No. 5571 of September 19, 198), which provides that "the base date for the imposition of the excess ownership charge for the housing site as of December 31, 1997 when the Act enters into force, shall be governed by the previous provisions regarding the imposition, collection, etc. of the excess ownership charge for the housing site imposed or to be imposed under the previous provisions." However, the above supplementary provisions are premised on the constitutionality of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 198), and it cannot be deemed that the above supplementary provisions are no longer applicable as long as the decision of unconstitutionality of the entire Act on the Ownership of Housing Site was made thereafter, and the result can not be seen as impairing legal stability.

[1] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 1998); Article 24 of the National Tax Collection Act / [2] Paragraph (3) of the Addenda of the repealed Act (Act No. 5571 of September 19, 1998)

[1] [2] Constitutional Court Order 94HunBa37 delivered on April 29, 199 and 66 others (merged) (HunGong34, 337)

Bupyeong-gu Incheon Metropolitan City (Law Firm Law, Attorneys Jin-young et al., Counsel for the plaintiff-appellant)

Seocho-gu Seoul Metropolitan Government et al. (Law Firm Ham, Attorneys Jeon-min et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na37103 delivered on November 30, 2001

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

Under the former Act on the Ownership of Housing Sites (amended by Act No. 5571 of Sep. 19, 198), the excess ownership charges under the former Act on the Ownership of Housing Sites (amended by Act No. 5571 of Sep. 19, 199), are financial burdens imposed as sanctions for breach of duty under the same Act, rather than taxes, and merely are compulsory means of enforcement to realize the purpose of the above Act, and thus, the excess ownership charges under the National Tax Collection Act may not be collected in accordance with the National Tax Collection Act without legal grounds. However, prior to the repeal of the above Act, if a person liable to pay the excess ownership charges under Article 30 fails to fully pay the excess ownership charges and additional charges within the designated time limit after receiving a notice of demand, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected."

However, as a decision of unconstitutionality on the whole of the Act on April 29, 199, the above provision of Article 30 became null and void from that day, and there is no other legal basis for compelling the collection of the delinquent amount of excess ownership other than the above provision.

Therefore, even if the imposition of excess ownership charges and the attachment registration based on the above disposition have already been made and each disposition has become final and conclusive prior to the decision of unconstitutionality, it cannot proceed with the subsequent disposition for arrears, such as public sale, which is a separate administrative disposition, after the decision of unconstitutionality, and unless there is no separate title of debt, the existing attachment registration alone cannot receive dividends in the auction procedure commenced by another person.

In addition, Article 3 of the Addenda to the Abolition Act (Act No. 5571 of Sep. 19, 198) provides that "the base date for the imposition of the excess ownership charges for the housing site as of December 31, 1997, which is the excess ownership charges for the housing site before the enforcement of the Act, shall be governed by the previous provisions with respect to the imposition and collection of the excess ownership charges for the housing site, which have been imposed or shall be imposed under the previous provisions. However, the above supplementary provisions are premised on the constitutionality of the above Act, and the above supplementary provisions are based on the premise that the Act on the Ownership of the housing site is constitutional. Accordingly, the above supplementary provisions cannot be applied any more, and the result cannot be said to undermine legal stability.

In light of the records, the judgment of the court below is just in holding that the plaintiff could not receive dividends in the auction procedure commenced on August 10, 1999 upon the voluntary request of the court of Seoul District Court No. 12732, which was received on March 14, 1996, for the collection of various kinds of taxes in arrears against the non-party 1, the registration of seizure under the name of the defendant Seocho-gu Seoul Special Metropolitan City under the name of the defendant 1812, which was received on January 14, 1998, and the collection of the amount of arrears in the housing site charges against the non-party 1, the Seoul District Court received on May 24, 1995, for the collection of the amount of arrears in the housing site charges against the non-party 1, which was registered under the name of the plaintiff under the name of the court of Seoul District Court No. 23785, May 24, 199.

Ultimately, we cannot accept the argument in the grounds of appeal.

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 on the bench.

Justices Song Jin-hun (Presiding Justice)