Whether Article 11(2) of the Land Excess Profits Tax Act, amended by the decision of inconsistency with the Constitution of the Constitutional Court, can be applied retroactively.

The Constitutional Court decided on July 29, 1994 that the former Land Excess Profit Tax Act does not conform with the Constitution in the case of 92HunBa49,52 (Consolidation). Accordingly, the National Assembly amended the tax base provisions (Article 11 of the Act) and tax rate provisions (Article 12 of the Act) which were pointed out to be unconstitutional in the above decision of inconsistency with the Constitution by Act No. 4807 of Jan. 22, 1994. In addition, Article 11(2) of the Act, which became the issue in this case, is "the standard market price of land at the end of the taxable period under paragraph (1) of this Article, shall be based on the standard market price of land on January 1 of the year following the year in which the taxable period ends, and Article 11(2) of the Act which became the issue in this case shall be applied retroactively to this case as in this case. Moreover, the above amendment provisions, etc. shall be applied retroactively to this case.

Article 11(2) of the former Land Excess Profits Tax Act (amended by Act No. 4807 of Dec. 22, 1994); Article 11(2) of the Land Excess Profits Tax Act

Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963) 93Nu101 delivered on November 10, 1995 (Dong Branch) Decision 92HunBa49,52 delivered on July 29, 1994 (No. 12792 delivered on July 36, 192)

[Defendant-Appellee] Plaintiff 1 et al.

The Director of Incheon Tax Office

Seoul High Court Decision 92Gu26286 delivered on September 24, 1993

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

The judgment of the court below on the fact that the farmland in this case as pointed out in the ground of appeal constitutes idle land under Article 8 (1) 5 (a) of the Land Excess Profit Tax Act as non-self-owned land, is justified in light of records and related evidence, and there is no error in the rules of evidence in violation of the rules of evidence. The grounds of appeal pointing this out are not acceptable.

2. On the second ground for appeal

On July 29, 1994, the Constitutional Court rendered a decision that the former Land Excess Profit Tax Act does not conform with the Constitution. Accordingly, the National Assembly, by Act No. 4807, Dec. 22, 1994, amended the tax base provisions (Article 11 of the Act) and the tax rate provisions (Article 12 of the Act), etc., newly establishing basic deductions (Article 11-2 of the Act), and newly establishing Article 11(2) of the Act at issue in this case, "The standard market price of the land at the end of the taxable period under paragraph (1) shall be governed by the standard market price of the land on January 1 of the year following the year when the end of the taxable period belongs, and the above amended provisions shall be retroactively applied to this case. Moreover, the above amended provisions shall be retroactively applied to this case.

Therefore, the judgment of the court below that deemed the standard market price of January 1, 1991 as the standard market price at the end of the scheduled period of determination of this case is just regardless of the amendment of the law, and the grounds of appeal premised on such a different interpretation are not accepted.

3. However, as seen earlier, Articles 11 and 12 of the amended Elementary and Secondary Tax Act shall apply to the tax base and tax rate for the scheduled period of determination in this case. However, the judgment of the court below that the disposition in this case, which determined that the tax amount calculated by applying the relevant provisions of the former Elementary and Secondary Tax Act, was lawful, was justified, was affected by the application of the legitimate Acts and subordinate statutes relating to the tax base and tax rate, and thus, it cannot be reversed in this regard.

4. 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 Park Jong-chul (Presiding Justice)