Whether Article 12 (1) of the Enforcement Decree of the former Land Excess Profit Tax Act can be applied retroactively.

Article 12 (1) of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 13805 of Dec. 31, 1992) (amended by Presidential Decree No. 13805 of Dec. 31, 1992) amended by Presidential Decree No. 13805 of Dec. 31, 1992 to "area (=20 km) within the distance prescribed in Article 23 (2) 2 of the Enforcement Decree of the Farmland Lease Management Act", and Article 2 (2) of the Addenda provides that the above amended Enforcement Decree provision shall apply to the portion of land excess gains arising from the first taxable period that ends after the enforcement date of the first taxable period from Dec. 31, 192, that is, the entire portion of land excess gains arising from the first taxable period that ends after January 1, 1990 to December 31, 192.

Article 8(1)5(a) of the Land Excess Profit Tax Act; Article 12(1) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by the Presidential Decree No. 13805 of Dec. 31, 192); Article 12(2) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by the Presidential Decree No. 13805 of Dec. 31, 1992); Article 12(2) of the former Enforcement Decree

Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963) 93Nu2142 delivered on October 13, 1995 (dong)

[Judgment of the court below]

The Director of Incheon Tax Office

Seoul High Court Decision 92Gu37699 delivered on September 7, 1993

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The court below's rejection of the assertion that the plaintiff actually resided in the Jung-gu Incheon Metropolitan Government, the same Gu as the land of this case from February 1982, on the ground that there is no evidence to acknowledge it, and there is no error in the rules of evidence against the rules of evidence. The grounds for appeal pointing this out shall not be accepted.

2. The main sentence of Article 8 (1) 5 (a) of the Land Excess Gains Tax Act provides that "the owner shall not reside in the area of farmland under the conditions as prescribed by the Presidential Decree or shall be idle farmland, etc. which he/she does not cultivate." According to Article 12 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13198 of Dec. 31, 1990, and the Enforcement Decree of the same Act was amended by Presidential Decree No. 131 of Dec. 31, 1992), Si/Gu (referring to Si/Gu within the Special Metropolitan City and Metropolitan Cities), Eup/Myeon where farmland is located, or Si/Gu/Eup/Myeon adjacent to the seat of Si/Gu/Eup/Myeon where farmland is located, and Article 9 (1) 5 (a) of the same Act provides that "the portion of farmland exceeding 9 (1) of the Enforcement Decree of the same Act shall be excluded from the land exceeding 9 (2) of the Enforcement Decree of the same Act for the first time after the end of the taxable period, 19 (3).

On the premise that the above amended enforcement decree provisions are not applied retroactively to the scheduled period of 1990 or the scheduled period of 191 that had already been terminated before its enforcement, the lower court did not examine and decide whether the land of this case constitutes farmland excluded from idle land under Article 12(1) of the Enforcement Decree of the above amended Enforcement Decree, thereby affecting the conclusion of the judgment by violating the misapprehension of the legal principles as to Article 12(2) of the Addenda of the above Enforcement Decree. The part claiming this point among the grounds of appeal is with merit.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)