A. The meaning of the principle of no taxation without law under the Constitution

B. Whether Article 23(2) of the Income Tax Act violates the principle of no taxation without law

C. Whether each provision of Articles 23(4) and 45(1)1 of the former Income Tax Act violates the principle of no taxation without law

A. The principle of no taxation without the law adopted under Articles 38 and 59 of the Constitution provides that the requirements and procedures for exercising the right to taxation, such as the requirements and procedures for collecting taxes, must be prescribed by the law enacted by the National Assembly, the representative agency of the people, but not by delegation to subordinate statutes, such as the order and rules, etc. of matters concerning the requirements for taxation and the procedures for collecting taxes, and if such matters are to be delegated to subordinate statutes, only specific and individual delegations are allowed, and comprehensive and white intellectual delegations are not allowed (tax-free statutory delegation). The provisions of such laws or orders and rules based on delegations must be clearly and clearly clear (tax-free principle).

B. Article 23(2) of the Income Tax Act provides that the transfer income amount shall be calculated by subtracting the acquisition value from the transfer value, etc., in calculating the transfer income tax base (transfer income), and it seems that there is a conflict between Article 120 of the Income Tax Act, which provides for a final return on tax base, on-site investigation determination and written investigation determination (Articles 117 through 119 of the Income Tax Act) and Article 23(2) of the Income Tax Act, provided that only the provisions of Article 23(2) are applied in calculating the transfer income amount as the special provisions of Article 120, so the provision of Article 23(2) is unclear, and thus, it cannot be deemed that the provision of Article 23(2) is contrary to the principle of no taxation without law under the Constitution.

C. Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 4281, Dec. 31, 1990; hereinafter “former Income Tax Act”) refer to the standard market price at the time of transfer or acquisition of the assets, and the transfer or acquisition value shall be based on the standard market price at the time of transfer or acquisition of the assets: Provided, That in cases prescribed by the Presidential Decree, it shall be based on the actual transaction price in the case prescribed by the Presidential Decree, and the subordinate laws and subordinate statutes (if one is based on the actual transaction price, the other is based on the actual transaction price, and if one is based on the standard market price, the other is based on the standard market price) or other standards (Article 170(1) main sentence of the former Enforcement Decree of the Income Tax Act and the other is based on the standard market price) (Article 170(1) proviso of the former Enforcement Decree of the Income Tax Act). However, each of the above provisions shall be based on the standard market price in the calculation of transfer and acquisition price, but it shall not be delegated to the lower regulations.

Articles 38 and 59 of the Constitution of the Republic of Korea, Article 23(2) of the Income Tax Act, Article 23(4) and Article 45(1)1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 190)

B. Supreme Court Decision 90Nu5511 delivered on December 7, 1990 (Gong1991, 502) 90Nu9629 delivered on July 26, 1991 (Gong191, 2269)

Applicant

Article 170 (1) (proviso) and (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) shall be dismissed, and Article 23 (2) of the Income Tax Act and Articles 23 (4) and 45 (1) 1 of the former Income Tax Act (amended by Presidential Decree No. 4281 of Dec. 31, 1990) shall be dismissed.

1. Article 41 (1) of the Constitutional Court Act provides that when a law violates the Constitution becomes the premise of a trial, the court in charge of the case concerned shall request the Constitutional Court to decide on the constitutionality of the law ex officio or upon the party's request. Thus, Presidential Decree, other than a law, cannot be the subject of a request for a trial on the constitutionality of the law, and Article 170 (1) (proviso) and (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989; hereinafter the same shall apply), which states that the applicant is unconstitutional, cannot be the subject of a request for a trial on the constitutionality of the law, since it is not a law,

2. The principle of no taxation without the law adopted under Articles 38 and 59 of the Constitution provides that the requirements and procedures for exercising tax rights, such as taxation requirements and collection procedures, shall be prescribed by the Act enacted by the National Assembly, the representative organ of the people. However, it is not possible to delegate matters concerning taxation requirements and collection procedures to subordinate Acts and subordinate statutes such as subordinate Acts and subordinate statutes, but specific and individual delegation is allowed if so delegated to subordinate Acts and subordinate statutes, and the provisions of orders and regulations based on such Acts and subordinate statutes or their delegation are not permissible (the legal basis for taxation). Thus, Article 23(2) of the Income Tax Act provides that the amount of transfer income shall be calculated by deducting the acquisition value from the actual market price (transfer income) so that it can not be determined based on the standard market price at the time of transfer by the former Act and subordinate Acts and subordinate statutes (Article 117 through 119 of the Income Tax Act). However, if the former Act and subordinate Acts and subordinate statutes provide that the transfer income amount shall be calculated based on the standard market price at the time of transfer value.

3. Therefore, the part concerning Article 170 (1) (proviso) and Article 170 (4) 1 of the former Enforcement Decree of the Income Tax Act among the applicants' applications for proposal of unconstitutionality of this case is dismissed. The part concerning Article 23 (2) of the Income Tax Act and Articles 23 (4) and 45 (1) 1 of the former Income Tax Act are dismissed. It is so decided as per Disposition by the assent

Justices Lee Yong-hun (Presiding Justice)