A. The criteria for determining a homeless household under the proviso of Article 21(1)1 of the Enforcement Decree of the former Land Excess Profit Tax Act; (b) whether Articles 12 and 11-2 of the Land Excess Profit Tax Act, which amended the tax rate pointed out as unconstitutional in the decision of the Constitutional Court, and newly established basic deductions in the calculation of the tax base, can be applied retroactively

A. The delegation of Article 8 (1) 14 (a) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) explicitly provides that the concept of one household means a household under the proviso of Article 2 (1) 1 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 14472 of Dec. 31, 1994), so long as the provision merely provides for the convenience of proving that the concept of one household means a household under the proviso of Article 2 (1) 3 of the former Enforcement Decree of the same Act, it cannot be interpreted that the concept of one household under the same provision means a group where one household actually lives in the same residential area regardless of whether it is registered in the resident registration card. Thus, even if a person who does not own a house and a member of one household actually resided together and registered as a member of one household under the resident registration card for convenience, it does not constitute a member of one household under the proviso of Article 21 (1) 1 of the former Enforcement Decree of the Land Excess Profit Act.

B. In the Constitutional Court Decision 92HunBa49,52 (Consolidated Decision) on July 29, 1994, the tax rate provisions under the former Land Excess Profit Tax Act (Article 12) was amended (Article 12). In calculating the tax base, the basic deduction that deducts 2 million won from the land excess profit in the pertinent taxable period was newly established (Article 11-2). The above amended provisions are retroactively applicable.

가. 구 토지초과이득세법(1994.12.22. 법률 제4807호로 개정되기 전의 것) 제8조 제1항 제14호 ㈎목 , 구 토지초과이득세법시행령(1994.12.31. 대통령령 제14470호로 개정되기전의 것) 제21조 제1항 제1호 단서 (현행 토지초과이득세법 제8조 제1항제14호 ㈎목 참조) , 택지소유상한에관한법률 제2조 제3호 나. 토지초과이득세법 제11조의2 토지초과이득세법 제12조

Supreme Court Decision 94Nu20402 delivered on July 28, 1995 (Gong1995Ha, 2963) 93Nu7051 delivered on October 13, 1995 (Dong Branch) 93Nu22548 delivered on October 13, 1995 (Dong Branch) 94Nu3520 delivered on October 13, 1995 (Dong Branch) 93Nu2674 delivered on November 7, 1995 (Dong Branch), 93Nu2681 delivered on November 7, 1995 (Dong Branch), 93Nu2711 delivered on November 7, 1995 (Dong Branch) 93Nu27989 delivered on September 13, 1995 (Dong Branch Branch) 97Nu29989 delivered on November 29, 195 (Dong Branch)

Plaintiff

The director of the tax office.

Seoul High Court Decision 92Gu14771 delivered on April 14, 1993

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

1. The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below, on the premise that the elements of taxation or non-taxation under the principle of no taxation without law should be interpreted strictly and that expanded interpretation or analogical interpretation is not allowed, and delegated under Article 8 (1) 14 (a) of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994), and clearly stated that the term "one household" under the proviso of Article 21 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14472 of Dec. 31, 1994) refers to a household under subparagraph 3 of Article 2 of the same Act, which owns the concept of "one household" under the proviso of Article 21 (1) 1 of the same Act. Thus, the court below's determination cannot be interpreted to mean a group of households with the same residence regardless of whether the plaintiff did not own a house as a member of a household under the resident registration card, and even if the plaintiff did not actually own a house under the proviso of the same Article 112 (1) of the former Enforcement Decree.

However, in the case of the Constitutional Court Decision 92HunBa49,52 (Consolidation) on July 29, 1994 that the former Land Excess Gains Tax Act does not conform with the Constitution, the National Assembly newly established the proviso on the part of the concept of one household above by amending Article 8 (1) 14 (a) of the former Land Excess Gains Tax Act (Act No. 4807, Dec. 22, 1994) which was applied by the court below to this case. This amendment shall be applied retroactively to this case as the case in question. Therefore, the application of the former Act before the amendment in this case would result in a mistake, or because the court below moved the concept of the above one household under the Enforcement Decree to the amended Act, and the content of the above amendment does not change, the court below's error does not affect the conclusion of the judgment. The ground of appeal is without merit.

2. Furthermore, decisions are made ex officio.

However, the National Assembly has amended the tax rate clause that the Constitutional Court pointed out as unconstitutional in the above decision (Article 12), and newly established the basic deduction that deducts two million won from the land excess profit in the pertinent taxable period in calculating the tax base (Article 11-2). Since the above amended provision also applies retroactively to this case, the court below maintaining the disposition of this case, which calculated the tax base and the tax amount pursuant to the Land Excess Profit Tax Act before the amendment, cannot be said to have committed an unlawful act that affected the judgment, and therefore, the judgment of the court below cannot be reversed in this regard.

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

Justices Park Jong-ho (Presiding Justice)