(영문) 대법원 2012.2.16.선고 2010두10907 판결

1. In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law and its purpose, meaning, function, etc. of the law and should be reasonably examined from a teleological perspective in determining whether the defect is significant and obvious (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court en banc Decision 2006Du330, Mar. 16, 2006).

On the other hand, Article 47(1) of the former Constitutional Court Act (amended by Act No. 10546, Apr. 5, 2011; hereinafter “former Constitutional Court Act”) provides that “The decision of unconstitutionality of a law shall bind courts, other State agencies, and local governments.” In light of the binding force of such decision of unconstitutionality and the systematic request of the legal order that provides the Constitution as the highest norm, State agencies and local governments may not take a new administrative disposition based on the legal provisions declared unconstitutional, and it is reasonable to view that any subsequent disposition based on a legal relationship already formed before the decision of unconstitutional may not be permitted if it creates and expands a new unconstitutional legal relationship.

Therefore, in a case where a legal provision that served as the basis for the imposition of a tax is declared as unconstitutional, even though the taxation disposition was made prior to the decision of unconstitutionality, the taxation claim became final and conclusive after the period for filing a lawsuit against the said taxation disposition has already expired, and no separate decision of unconstitutionality was made with respect to the relevant provision on the basis of the disposition on default for the enforcement of a tax claim, the commencement or continuation of a new disposition on default for the enforcement of a tax claim after the decision of unconstitutionality is no longer permissible, and further, a disposition on default that violates the validity of such decision of unconstitutionality should be deemed null

According to the reasoning of the first instance judgment partially accepted by the court below, on October 22, 1997, the defendant constitutes the second taxpayer under Article 39 (1) 2 (c) of the former Framework Act on National Taxes (amended by Act No. 5579 of Dec. 28, 1998; hereinafter referred to as the "former Framework Act on National Taxes") and thus, the plaintiff constitutes the second taxpayer under Article 39 (1) 2 (c) of the former Framework Act on National Taxes (hereinafter referred to as the "instant taxation").

The facts, however, the Constitutional Court declared that Article 39(1)2(c) of the former Framework Act on National Taxes violates the Constitution through the decision of May 28, 1998 by 97HunGa13, and thereafter, the defendant, based on the National Tax Collection Act, which had been effective in accordance with the pertinent tax disposition, imposed a seizure of the deposit claim under the plaintiff's name on October 11, 2005 in order to collect the delinquent amount and the amount of loss (including additional tax) in arrears and losses (hereinafter referred to as "the seizure disposition of this case").

On the premise of such facts, the lower court determined that the instant attachment disposition, which was rendered after the decision of unconstitutionality on the grounds of the provision on the grounds of the instant taxation, constitutes an administrative disposition, which is void as a matter of course, by the Defendant’s additional act for the final enforcement of the instant taxation disposition, based on the premise that, after the decision of unconstitutionality, the status of the application of the unconstitutional law is neglected in terms of the relief of citizens’ rights, or that the State agency’s additional act for enforcement

In light of the above legal principles and records, although the court below's explanation of some reasons is not appropriate, the court below's conclusion that the attachment disposition of this case was void as a matter of course on the premise that the government agency's additional acts for the final enforcement of the unconstitutional law should not be used, after the decision of unconstitutionality is made. There is no error of law in the misapprehension of legal principles as to the grounds for invalidation of the attachment disposition, which was made after the decision of unconstitutionality as to the provisions of the grounds for taxation disposition

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 judges, except for a dissenting opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Kim Yong-deok.

2. Dissenting Opinion by Justice Dai-hee, Justice Shin Young-chul, and Justice Kim Yong-deok is as follows.

In light of the binding force of the decision of unconstitutionality under Article 47(1) of the former Constitutional Court Act and the systematic request of the legal order that provides the Constitution as the highest norm, the Majority Opinion, even if there is only a provision on the basis of the decision of unconstitutionality, and there is no provision on the basis of the disposition of unconstitutionality with respect to the disposition on default following the decision of unconstitutionality, the disposition on default that was made after the decision of unconstitutionality prior to the decision of unconstitutionality should be null and void as it is significant and objectively apparent.

First, if the Constitutional Court, after an administrative disposition based on a provision of a law, decides that the provision is unconstitutional, the administrative disposition would result in a defect later and later becomes unconstitutional. However, the circumstances generally violating the Constitution cannot be deemed objectively apparent before the Constitutional Court renders a decision of unconstitutionality. Thus, barring special circumstances, such defect is only a ground for revocation of the administrative disposition, and it cannot be deemed a ground for invalidation automatically (see, e.g., Supreme Court Decisions 92Nu9463, Oct. 28, 1994; 2007Du16202, May 14, 2009).

In addition, in a case where an independent act was conducted by stages for a certain administrative purpose, the defect of the preceding disposition cannot be deemed to be succeeded to the subsequent disposition as a matter of course except when there is a defect that is a legitimate invalidation or non-existence in the preceding disposition (see Supreme Court Decisions 4292Da73, Oct. 26, 1961; 98Du9530, Nov. 27, 2001, etc.).

Inasmuch as the instant taxation disposition and the instant attachment disposition are separate administrative dispositions based on the previous Supreme Court precedents, it is reasonable to view that the validity of the instant attachment disposition, which is subsequent disposition on the ground of the defect in the instant taxation disposition, cannot be asserted, except in cases where the instant taxation disposition, which is a prior disposition, is null and void as a matter of course. Furthermore, the instant taxation disposition is a valid disposition as seen earlier.

Second, according to Article 47 of the former Constitutional Court Act on the effect of the decision of unconstitutionality, the decision of unconstitutionality of a law is binding on a court or other state agency or local government, but the law or provision of a law decided as unconstitutional shall lose its effect from the date of the decision. However, in principle, it is reasonable to interpret that the binding force of the decision of unconstitutionality of a state agency or local government shall be effective to the extent that the effect of the decision of unconstitutionality is within the scope of the effect of the decision of unconstitutionality.

However, a disposition on default, such as attachment, is a separate administrative disposition different from a disposition on default, and is not directly applied to the provisions related to the disposition on default, and thus, the binding force of the decision on unconstitutionality of the provisions related to the disposition on the basis of taxation is irrelevant to the disposition on default

In addition, in a case where the retroactive effect of a decision of unconstitutionality on a previous tax disposition is limited and its validity does not extend, the pertinent tax disposition is deemed valid and unconstitutional. Therefore, the disposition on default based on the said tax disposition is not unconstitutional and does not violate the binding force of the decision of unconstitutionality. Therefore, in order to suspend the proceeding of the disposition on default based on the tax disposition, a separate legislation is required to expand the scope of the effect of the decision of unconstitutionality on the grounds of the tax disposition, as in the case of the penal law, and to exclude the effect of the taxation disposition

Nevertheless, if the majority opinion, as regards a valid taxation, prohibits the progress of the procedure for disposition on default and practically extinguishs the validity of the taxation disposition, it is possible to point out that the binding range is excessively expanding, thereby, it does not conform to the purport of the main sentence of Article 47(2) of the former Constitutional Court Act that limits the retroactive effect of the decision on unconstitutionality.

Third, in comparison with some other legislative cases of Germany, in the case of Germany, there is a retroactive effect on the decision of unconstitutionality, but it is deemed that there is no retroactive effect on the legal relationship that became final and conclusive at the time of the decision of unconstitutionality, but it is explicitly stipulated that the enforcement pursuant to the provisions of the law that declared the decision of unconstitutionality cannot be conducted. The majority opinion ultimately states that the relevant provisions of Korea should be interpreted and operated like Germany, but it is difficult to accept such interpretation theory in Korea without any explicit provision

Therefore, as long as there is no ground to invalidate a tax disposition that constitutes a preceding disposition and the ground provision for a disposition on default exists effective, the disposition on default cannot be deemed unlawful solely on the ground that the Constitutional Court rendered a decision of unconstitutionality as to the ground provision for a tax disposition.

In light of the above legal principles, the pertinent tax disposition does not have any ground for invalidation as a matter of course, and the pertinent provision on the basis of the subsequent disposition of arrears pursuant to the said tax disposition remains valid. Unless there is any express provision excluding the executive force of the unconstitutional law, such as some foreign legislation cases, the instant tax disposition cannot be deemed null and void as a matter of course.

Nevertheless, the court below held that the attachment disposition of this case, which was made after the decision of unconstitutionality as to the provisions on the basis of the taxation disposition of this case, was null and void as a matter of course on the grounds that the state agency should not neglect the status of application of the unconstitutional law in terms of the relief of citizens' rights or make any additional action of the state agency for the enforcement of the unconstitutional law, after the decision of unconstitutionality. In this regard, the court below erred by misapprehending the legal principles on the grounds for invalidation of the attachment disposition, which was made after the decision of unconstitutionality as to the provisions on