A. Whether the taxable object of the Land Excess Profit Tax Act is inconsistent with the concept of tax under the Constitution

B. Whether Article 23 of the former Land Excess Profits Tax Act violates Article 38 of the Constitution

C. Whether Article 107(1) and Article 111 of the Constitution violates Articles 107(1) and 111 of the Constitution, where a court rendered a final judgment without waiting the decision of the Constitutional Court, even though a party to a lawsuit requested an adjudication

(d) Whether Articles 11, 12 and 11-2 of the Land Excess Profits Tax Act, which amended the tax base and tax rate pointed out to be unconstitutional in the decision of the Constitutional Court, and newly established basic deductions in the calculation of the tax base, can be applied retroactively to them;

A. Whether the scope of capital gains subject to taxation is limited to the income realized or includes unrealizedable gains is merely a matter of legislative policy that is determined by considering the purpose of taxation, characteristics of taxable income, problems in taxation techniques, etc. and do not seem to be inconsistent or inconsistent with the constitutional tax concept.

B. The taxation of the estimated period under Article 23 of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) is a tax prepayment system for the three-year taxable period, and all matters such as the scope of idle land, taxpayer, tax rate, return, and payment for the scheduled period are prescribed by the Act, and the area subject to taxation is limited to "area designated by the Commissioner of the National Tax Service through deliberation by the committee as determined by the Presidential Decree". Thus, it cannot be deemed that the provisions of Article 23 of the former Land Excess Profit Tax Act, which stipulate the purport thereof, violate Article 38 of the Constitution that provides for no taxation without

C. According to Articles 41 and 42 of the Constitutional Court Act, only when a court in charge of the relevant case requests an adjudication on the constitutionality of a law to the Constitutional Court ex officio or by decision at the request of a party, the relevant litigation case shall be suspended until the Constitutional Court makes a decision on the constitutionality of a law. Thus, even though a party to a lawsuit requests a adjudication on the constitutionality of a law, which serves as the premise of a judgment, to the court, even though the court failed to wait for the decision on the constitutionality of a law, and decided to dismiss all of the parties to a lawsuit without waiting for the decision on the constitutionality of a law to the Constitutional Court, such judgment cannot be deemed to have violated Articles

D. On July 29, 1994, the Constitutional Court rendered a decision that the former Land Excess Profit Tax Act does not conform with the Constitution in the case of consolidation of 92HunBa49,52. Accordingly, the National Assembly revised the tax base provisions (Article 11 of the Act) and the tax rate provisions (Article 12 of the Act) that pointed out that the above decision of inconsistency with the Constitution was unconstitutional or unconstitutional as a result of the law No. 4807 on December 22, 1994, and the National Assembly revised the tax base provisions (Article 11 of the Act) and the tax rate provisions (Article 12 of the Act) to deduct two million won from the land excess profit in the pertinent taxable period when calculating the tax base (Article 11-2 of the Act), and the above amended provisions are applied

A.B. Article 38(b) of the Constitution of the Republic of Korea: Article 23(c) of the former Land Excess Profits Tax Act (amended by Act No. 4807 of Dec. 22, 1994); Articles 107(1), 111 of the Constitution of the Republic of Korea; Articles 41 and 42(d) of the Constitutional Court Act; Articles 11, 11-2, and 12 of the Land Excess Profits Tax Act;

C. Supreme Court Decision 89Nu5850 delivered on February 9, 1990 (Gong1990, 779) 92Da5770 delivered on March 3, 1995 (Gong195Sang, 150). Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963), 93Nu7051 delivered on October 13, 1995 (Gong1995Ha, 3818) 93Nu304 delivered on November 14, 1995 (Dong) 93Nu1949 delivered on November 14, 195 (Dong) 93Nu3479 delivered on November 14, 1995)

Plaintiff 1 and one other, Plaintiffs Hong-il, Counsel for the plaintiff-appellant

Head of Seocho Tax Office

Seoul High Court Decision 92Gu13365 delivered on October 21, 1992

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

1. We examine the grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent of supplement).

A. As to the first ground for appeal

Whether or not to limit the scope of capital gains which are subject to taxation to the income realized or to include unrealized gain is a matter of legislative policy to be determined by considering the purpose of taxation, characteristics of taxable income, problems in taxation techniques, etc. It does not seem to be a conflict or inconsistent with the concept of tax under the Constitution. There is no reason to discuss this issue.

In addition, the provisions of Articles 11 and 12 of the former Land Excess Profits Tax Act (amended by Act No. 4807 of Dec. 22, 1994; hereinafter the same shall apply) cannot be applied to this case any longer, as seen below, and the amended legal provisions shall be applied. Thus, the issue on the premise that the legal provisions before the above amendment are applied as they are cannot be accepted.

B. On the second ground for appeal

Article 23 of the Elementary and Secondary Tax Act is a tax prepayment system for the taxable period of three years, and all matters such as the scope of idle land, taxpayer, tax rate, return, and payment for the scheduled period are prescribed by the Act, and the area subject to taxation is limited to "area designated by the Commissioner of the National Tax Service through deliberation by the Committee as prescribed by the Presidential Decree". Thus, Article 23 of the Elementary and Secondary Tax Act, which provides for such purpose, does not constitute a violation of Article 38 of the Constitution that provides for no taxation without law. In conclusion, the lower court’s judgment is justifiable, and there is no error of law such as the theory of lawsuit. There is no ground for discussion

C. On the third ground for appeal

According to Articles 41 and 42 of the Constitutional Court Act, only when a court in charge of the case in question requests an adjudication on the constitutionality of a law to the Constitutional Court ex officio or upon request of a party, the adjudication on the case in question shall be suspended until the Constitutional Court makes a decision on the constitutionality of a law. Thus, even though the court below made a request for adjudication on the constitutionality of a law which is the premise of the decision in this case, such as the theory of the lawsuit, and even though the court below did not wait for the Constitutional Court's decision on the constitutionality of a law, it cannot be deemed that the judgment of the court below violated Articles 107 (1) and 111 of the Constitution (see, e.g., Supreme Court Decision 89Nu5850, Feb. 9, 190; Supreme Court Decision 92Da5570, Mar. 3, 1995).

2. However, in the case of ex officio review, the Constitutional Court decided on July 29, 1994 that the provisions of the tax base (Article 11 of the Act) and the tax rate provisions (Article 12 of the Act) which were pointed out to be unconstitutional or unconstitutional in the above decision of inconsistency with the Constitution as a result, Article 4807 of the Act on December 22, 1994, and Article 11 of the Act are newly established (Article 11-2 of the Act), and Article 11-2 of the Act are applied retroactively to this case as in the case of this case, so the court below's decision shall be reversed as it affected the conclusion of the judgment, since the provisions of the basic deduction that make a deduction of two million won from the land excess profit in the pertinent taxable period shall be applied retroactively to this case as in the pertinent case.

3. Therefore, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)