[1] Whether it is a case where the use of land is prohibited or restricted pursuant to Article 8(3) of the Land Excess Profit Tax Act merely because the land was located within the First Class Scenic Zone and the lowest height zone and it became impossible to construct a building in part of the land (negative)

[2] Whether taxation on the scheduled period of determination is illegal on the ground that the inflation rate during the present taxable period, which includes the scheduled period of determination, falls short of the normal inflation rate of land price (negative)

[3] The scope of application of the Land Excess Profit Tax Act amended by the Constitutional Court's decision of inconsistency with the Constitution

[1] If it is impossible to construct a building on the part from among the land due to the designation, etc. of the Class 1 aesthetic district and the lowest height zone (138.7 square meters) to the part from the boundary line of the road to the 11.1 square meters (138.7 square meters), such circumstance alone does not necessarily mean that the use of the building is restricted in excess of the ordinary limit of the land. Thus, it shall not be deemed that the part up to the boundary line of the land, among the above land or the above land, up to the 11th square meters from the road boundary line, falls under the land, the use of which is prohibited or restricted

[2] In light of the provisions of Article 21(2)3 of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), Articles 23(1) and 24(1) of the Land Excess Gains Tax Act, etc., taxation on the scheduled period is not illegal due to the reason that the inflation rate during the taxable period including the scheduled period of determination falls short of the normal inflation rate of land prices during the said period.

[3] The provisions of the Land Excess Gains Tax Act newly established or amended by Act No. 4807 of Dec. 22, 1992 pursuant to the Constitutional Court Decision 92Hun-Ba49, 52 (merged) of July 29, 1994, should be applied retroactively to the pertinent case like the instant case.

[1] Article 8(3) of the Land Excess Profits Tax Act; Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Profits Tax Act / [2] Article 21(2)3 of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 193); Articles 23(1) and 24(1) of the Land Excess Profits Tax Act / [3] Article 107(1) of the Constitution of the Republic of Korea; Article 47(2) of the Constitutional Court Act; Articles 11, 11-2, 12, and 19 of the Land Excess Profits Tax Act

[3] Supreme Court Decision 92Hun-Ba49, 52 delivered on July 29, 1994 (No. 12792No. 36 delivered on July 28, 1995) Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963), Supreme Court Decision 93Nu22548 delivered on October 13, 1995 (Gong1995Ha, 3822 delivered on November 7, 1995), Supreme Court Decision 93Nu8238 delivered on November 7, 1995 (Gong195Ha, 3937), Supreme Court Decision 92Nu18122 delivered on November 10, 1995 (Gong195Ha, 3945) and Supreme Court Decision 196Nu13979 delivered on September 16, 1964).

Plaintiff (Attorney Jung-gu, Counsel for defendant-appellant)

Head of Dong Daegu Tax Office

Daegu High Court Decision 92Gu1699 delivered on June 23, 1993

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. The grounds of appeal are examined.

On the first ground for appeal

According to the facts duly admitted by the court below, there are various restrictions on the use, size, etc. under the Building Act, etc., but the plaintiff constructed a building on the land of this case after obtaining a construction permit as of November 19, 192.

In light of the above circumstances, even if it is impossible to construct a building on the part from the road boundary line to the 11.0 square meters of land from among the instant land due to the designation of the Class 1 aesthetic district and the lowest height zone (138.7 square meters of land), such circumstance alone does not necessarily lead to the restriction on the use of the building beyond the ordinary limit of land. Thus, the part of the instant land or the instant land up to 11 meters from the road boundary line cannot be deemed to constitute a land, which is prohibited or restricted pursuant to the provisions of Article 8(3) of the Land Excess Profit Tax Act as of December 31, 1990, which is the end of the scheduled decision period of this case, and Article 23 subparag. 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14470 of Dec. 31, 194).

The decision of the court below that made the above conclusion is just, and there is no error in the misapprehension of legal principles or incomplete deliberation as it is so decided.

There is no reason to discuss this issue.

On the second ground for appeal

The theory of lawsuit is that the inflation rate of land price in this case from the date of the scheduled decision period (from January 1, 1990 to December 31, 1993) to January 1, 1993 (which appears to be the last day of the taxable period including the scheduled decision period) falls short of 44.53% (which appears to be the normal inflation rate) of the inflation rate of land in this case during that period. Thus, although the taxation in this case was unlawful, it is new fact that it was asserted only for the party member, and it is obvious that there was no assertion in the original decision, and therefore, it cannot be a legitimate ground for appeal against the judgment below.

In addition, in light of the provisions of Article 21(2)3 of the Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993) and Article 23(1) and Article 24(1) of the Land Tax Act (amended by Act No. 4807 of Dec. 22, 1994), taxation for the scheduled period is not illegal due to the reason that the inflation rate during the pertinent taxable period including the scheduled period for determination falls short of the normal inflation rate of land prices during the pertinent period.

There is no reason to see any one in the guidance.

2. Furthermore, decisions are made ex officio.

In rendering the instant disposition, the lower court determined that the tax amount calculated by the Defendant pursuant to Articles 11, 12, and 19(1) of the former Local Tax Act (amended by Act No. 4807, Dec. 22, 1994) was lawful.

However, according to the Constitutional Court's decision of inconsistency with the Constitution of 92HunBa49, 52 (merged) on July 29, 1994, the provisions of the soil tax law newly established or amended by Act No. 4807 on December 22, 199, should be applied retroactively to this case as in the case in question. Thus, the above judgment of the court below was ultimately a result of the application of the laws on tax base, tax rate, and additional tax, and it is clear that this affected the judgment, and thus, it cannot be exempted from reversal.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Kim Jong-soo (Presiding Justice)