[1] The case dismissing a motion for unconstitutionality as to the above provisions on the ground that the proviso of Article 111(2) and the proviso of Article 130(2) of the Local Tax Act, which stipulates that the reported value shall be deemed as the tax base when it falls short of the market standard, does not violate the principle of tax equality and the principle of

[2] The case which rejected the request for adjudication on the unconstitutionality of a real estate agent under Articles 111(5)5 and 130(3) of the Local Tax Act and Article 28(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act on the ground that it is not a premise of the judgment

[1] Articles 111(2) and 130(2) of the Local Tax Act, Articles 11(1), 23, and 59 of the Constitution / [2] Articles 111(5)5 and 130(3) of the Local Tax Act, Article 28(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Article 41(1) of the Constitutional Court Act

[1] Constitutional Court en banc Order 99Hun-Ga2 delivered on December 23, 199 (Hun-Gong41, 33)

Applicant (Attorney Lee Dong-hwan et al., Counsel for plaintiff-appellant)

The part concerning the proviso of Article 111(2) and the proviso of Article 130(2) of the Local Tax Act shall be dismissed among the application for the instant proposal for unconstitutionality. Articles 111(5)5 and 130(3) of the Local Tax Act, Article 28(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by Act No. 8120 of Dec. 28, 2006), and Article 80(3) of the Enforcement Decree of the Local Tax Act shall be dismissed.

1. As to the proviso of Article 111(2) and proviso of Article 130(2) of the Local Tax Act

Article 111(2) of the Local Tax Act provides that the assessment standard for acquisition tax shall be based on the reported value by the acquisitor: Provided, That if there is no indication of the reported or reported value or if the reported value falls short of the statutory standard value prescribed in each subparagraph of the same paragraph, such statutory standard value shall be based, and Article 130(2) of the same Act provides that the registration tax base shall be reported by the registrant under the conditions as prescribed by the Municipal Ordinance: Provided, That if there is no report or the reported value falls short of the statutory standard value under each subparagraph of Article 111(2

Acquisition tax is a kind of distribution tax where the fact that the transfer of property is based on the fact that it is the transfer of property and imposes taxes. Registration tax is a tax imposed on the existence of the fact that the acquisition, transfer, change, or extinction of property rights or other rights is registered in the public book. Where acquisition tax or registration tax is not a tax imposed on the purchaser by taking advantage of the profits that the purchaser may obtain by using or using the goods or by disposing of the goods, but a tax is imposed on the acquisition act or registration act by taking advantage of the value of the taxable object at the time of acquisition or registration, and the tax base is not the amount actually paid for the acquisition, but the objective value of the acquired property should be calculated based on the objective value of the acquired property.

Therefore, with the objective value of property, namely, the market price properly reflected, the proviso of Article 111(2) and the proviso of Article 130(2) of the Local Tax Act, providing that the standard market price shall be deemed as the tax base when the reported value falls short of the standard market price, excluding any irregularities that can be opened in the process of enforcing the tax law, and realizing the equity and tax justice of substantial tax burden, and cannot be deemed as violating the principle of equal taxation or the principle of no taxation without law, or as violating property rights (see Constitutional Court Order 9Hun-Ga2, Dec. 23, 199).

The applicant asserts that the above statutory provisions violate the property right guaranteed by Article 23 of the Constitution by imposing acquisition tax, etc. on the basis of uniform statutory standard even in a case where the market price is not accurately reflected in the market price. However, in a case where the above statutory provision does not properly reflect the market price, if it is deemed that the market price is considerably unreasonable, the applicant may claim and seek remedy for the illegality of the calculation of the market price in the administrative litigation seeking the revocation of the pertinent taxation based on the above statutory standard, and thus, the above statutory provision does not stipulate the method of verification or separate procedure for objection under the Local Tax Act, and thus, it cannot be deemed that the above statutory provision infringes the property right guaranteed by Article 23 of the Constitution.

Therefore, this part of the petition seeking the unconstitutionality of the above legal provisions is without merit.

2. As to Articles 111(5)5 and 130(3) of the Local Tax Act and Article 28(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by Act No. 8120, Dec. 28, 2006; hereinafter “Licensed Real Estate Agent Act”).

In order to propose a trial on the constitutionality of a law, the law in question must be the premise of a trial on the issue of whether it violates the Constitution. Here, the term "the premise of a trial" means a specific case pending before a court, the law at issue should apply to a trial on the relevant case, and the court in charge of the relevant case shall make another decision depending on whether the law is in violation of the Constitution (see Supreme Court Order 2002Hu113, Sept. 27, 2002, etc.).

According to the records, on November 6, 2006, the applicant filed a report with the non-party on November 23, 2006 on the non-party's purchase of 130 million won of the Dadong-dong (number number, apartment name omitted) No. 001 of the underground floor (hereinafter "the commercial building of this case") and the real estate transaction report with the head of Sungdong-gu Seoul Metropolitan Government under the Licensed Real Estate Agent Act on November 23, 2006. Meanwhile, on the ground that the reported value at the time of acquisition and registration of the commercial building of this case falls short of the standard market value of the commercial building of this case, on November 23, 2006, the applicant filed a lawsuit with the Seoul High Court 10 million won (hereinafter "the reported value of the commercial building of this case") and the 201.

Examining the above facts in light of the legal principles as seen earlier, Articles 111(5)5 and 130(3) of the Local Tax Act and Article 28(1) of the Licensed Real Estate Agent Act do not provide the basis for the disposition of this case, but merely provide that the applicant shall apply to the determination of the tax base of acquisition tax and registration tax on the commercial building of this case. Thus, the above legal provisions do not constitute cases where the court decides on the illegality of the disposition of this case according to whether they violate the Constitution, and thus, do not constitute a premise for the judgment.

Therefore, this part of the petition seeking the unconstitutionality of the above legal provisions is unlawful.

3. As to Article 80(3) of the Enforcement Decree of the Local Tax Act

Article 41(1) of the Constitutional Court Act provides that only when a law violates the Constitution is the premise of a trial, the court may request the Constitutional Court to decide on the constitutionality of the Local Tax Act. Thus, whether the Enforcement Decree of the Local Tax Act, which is a Presidential Decree, is illegal or not (see Supreme Court Order 90Nu5, Jun. 11, 1991).

Therefore, this part of the petition seeking the unconstitutionality of the above Enforcement Decree provision is also unlawful.

4. Conclusion

Therefore, the part concerning the proviso of Article 111(2) and the proviso of Article 130(2) of the Local Tax Act among the application for the instant proposal for unconstitutionality is dismissed, and the part concerning Article 111(5)5 and Article 130(3) of the Local Tax Act, Article 28(1) of the Licensed Real Estate Agents Act, and Article 80(3) of the Enforcement Decree of the Local Tax Act is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)