[1] The scope of "mid-term" which is subject to acquisition tax, and whether Article 104 subparagraph 2-2 of the former Local Tax Act is unconstitutional (negative)

[2] Whether Article 40-2 of the former Enforcement Rule of the Local Tax Act is invalid (affirmative)

[1] Under the principle of no taxation without law, taxation requirements must be strictly interpreted, and the general and comprehensive delegation legislation is prohibited. However, even if it appears to be generally and comprehensively delegated in external form as it does not expressly stipulate the specific scope of delegation itself, if it can be objectively clearly determined through examining the overall structure, purport, purpose, and purpose of the relevant provision, the form and content of the relevant provision, and the relevant laws and regulations, it shall not be deemed to constitute a general and comprehensive delegation. Article 104 subparagraph 2-2 of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993) provides that the former Local Tax Act (amended by Act No. 4561 of Jun. 1, 1993) provides that the latter part of Article 104 subparagraph 2-2 of the former Local Tax Act (amended by the Ordinance of the Ministry of Home Affairs No. 99 of Jun. 11, 199) provides that the latter part of the Local Tax Act (amended by the Ordinance of the Ministry of Home Affairs and Home Affairs No. 16 of the former Local Tax Act) provides that the former Act.

[2] In addition to the construction work under the former Enforcement Rule of the Local Tax Act (amended by the Ordinance of the Ministry of Home Affairs No. 602 of Dec. 31, 1993), the provisions which expand the scope of mid-term period under Article 40-2 of the former Enforcement Rule of the Local Tax Act without limitation on the loading and unloading of cargo at a wharf or an airport, mining use, and other purposes of the use of the former Enforcement Rule shall be null and void since

[1] Articles 104 subparag. 2-2 and 105(1) of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993); Article 40-2 [Attachment 5] of the former Enforcement Rule of the Local Tax Act (amended by Act No. 602 of Dec. 31, 1993); Article 2 subparag. 1 of the former Medium-Term Management Act (amended by Act No. 4561 of Jun. 11, 1993); Article 2 [Attachment 1] of the former Enforcement Decree of the Construction Machinery Management Act (amended by Presidential Decree No. 14063 of Dec. 31, 1993); Article 104 subparag. 1 of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993); Article 104 subparag. 2-13, 196 of the former Enforcement Rule of the Local Tax Act (amended by Act No. 4561 of Jun. 19, 193)

Honam Petroleum Chemical Co., Ltd. (Attorney Kim Du-type, Counsel for the plaintiff-appellant)

J.S. market

Gwangju High Court Decision 94Gu1738 delivered on January 20, 1995

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

We examine the grounds of appeal.

1. Article 105 (1) of the Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993) provides that "second term" shall be subject to acquisition tax, and Article 104 subparagraph 2-2 of the same Act provides that "second term" shall be "second term under the Mid Term Management Act and the second term determined by the Ordinance of the Ministry of Home Affairs."

그런데 중기관리법(1993. 6. 11. 법률 제4561호 건설기계관리법으로 전문 개정되기 전의 것) 제2조 제1호 는 "중기라 함은 건설공사에 사용할 수 있는 기계로서 대통령령으로 정하는 것을 말한다"고 규정하고, 이의 위임을 받은 중기관리법시행령 제2조 [별표 1]은 중기의 하나로 "공기압축기 : 공기토출량이 매분당 2.83㎥(매㎠당 7㎏ 기준) 이상의 이동식인 것"을 들고 있는 반면, 위 지방세법 제104조 제2호의2 의 위임에 따른 지방세법시행규칙(1993. 12. 31. 내무부령 제602호로 개정되기 전의 것) 제40조의2 는 " 법 제104조 제2호의2 의 규정에 의한 중기는 건설공사용, 부두나 공항의 화물하역용, 광업용 기타 그 용도에 불구하고 [별표 5]에 규정된 것으로 한다"고 규정하고, 그 [별표 5]는 중기의 하나로 "공기압축기 : 공기토출량이 매분당 2.84㎥(매㎠당 7㎏ 기준) 이상인 것"을 들고 있어, 중기에 해당하는 공기압축기의 범위를 중기관리법에 비하여 광범하게 확장하여 규정하고 있다.

2. Under the principle of no taxation without law, all taxation requirements, such as the items and rates of taxation, taxable objects, and tax bases, must be provided in detail and strictly by law. In delegation of an order, only specific and individual delegation is permitted, and general and comprehensive delegation is not permitted. The latter part of the provisions of the Local Tax Act, which is the latter part of the provisions of the said Local Tax Act, does not directly and explicitly stipulate the scope of delegation of taxation, as asserted by the arguments.

However, even if the legal provision itself does not clearly stipulate the specific scope of delegation and it appears to be a general and general delegation in external form, if it can objectively clearly determine the scope or limit of delegation inherent in its interpretation by examining the overall structure, purport, purpose, and purpose of the law, the form and content of the provision in question, and the relevant laws and regulations, it shall not be deemed as a general and general delegation if it can be objectively clearly determined.

However, as above, the taxation requirement under the principle of no taxation without law should be strictly interpreted, the general and comprehensive delegation legislation is prohibited, and Article 104 subparagraph 2-2 of the Local Tax Act uses the term "mid the mid-term period prescribed by the Ordinance of the Ministry of Home Affairs" in the latter part after the definition of "mid the mid-term period" in the former part as the definition of "mid the mid-term period" and the term "mid the mid-term period prescribed by the Ordinance of the Ministry of Home Affairs", and all matters concerning mid-term period such as the definition, registration, type approval, etc. of the mid-term period are prescribed by the mid-term Management Act. In full view of the fact that the mid-term Management Act limits the use of the mid-term period to the use of construction works as mentioned above, the latter part of Article 104 subparagraph 2-2 of the Local Tax Act appears to have borrowed the concept of "mid-term period" under the Mid-Term Management Act, and at the same time, the amendment of the Local Tax Act and the scope of the above Local Tax Act can be defined as the Construction Machinery Management Act.

As long as the above provisions of the Local Tax Act are interpreted as such, it shall not be deemed as a general and general delegation provision, such as theory. However, in addition to the construction work prescribed in Article 40-2 of the Enforcement Decree of the Local Tax Act, the provisions which expand the scope of the mid-term scope of the mid-term scope of Article 40-2 of the Enforcement Decree of the Local Tax Act without limitation to the wharfs, airport cargo loading and unloading, mining, and other purposes without restriction shall be deemed null and void since they extend

3. According to the facts duly admitted by the court below in this case, the air compression of this case is part of the production facilities installed and used in the plaintiff's production warehouse. Thus, the air compression of this case is not for construction work, and it does not belong to the mid-term period subject to acquisition tax under the above Local Tax Act.

Nevertheless, the judgment of the court below, which held that air compressors of this case are subject to taxation under the premise that the above Enforcement Rule of the Local Tax Act is valid, is erroneous in the misapprehension of legal principles as to the effect of the above Enforcement Rule of the Local Tax Act and the scope of mid-term, thereby affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice)