Taxation of Comprehensive Real Estate Holding Tax in its original form in the golf course

Provisions that comprehensive real estate holding tax shall be imposed by classifying forest land preserved in its original form into general aggregate taxation in the golf course shall not violate the Constitution.

1. The plaintiff's claim is dismissed.

2. The plaintiff bears the costs of lawsuit.

The defendant's rejection disposition against the plaintiff on June 27, 2007 (which appears to be a clerical error in the purport of the claim on June 26, 2007) is revoked as to the disposition of rejection of the disposition of imposition of comprehensive real estate holding tax for 2006 December 15, 2006.

1. Details of disposition;

A. The Plaintiff is a company that operates a membership golf course in 100-2, in the 100-2, in the Dog-si, Gwangju City. On December 15, 2006, the Plaintiff classified the forest land preserved in its original form in the instant golf course owned by it (hereinafter referred to as “instant forest forest preserved in its original form”) as subject to comprehensive taxation, and reported and paid to the Defendant under Article 11 of the Gross Real Estate Tax Act and Article 182(1)1 and 2 of the former Local Tax Act (amended by Act No. 8864, Feb. 29, 2008; hereinafter referred to as the “former Local Tax Act”).

B. On May 16, 2007, the Plaintiff filed a request for correction with the Defendant to the effect that the said report and payment, which classified the forest land in its original form as a general aggregate subject to general aggregate subject to general aggregate subject to taxation, is based on an unconstitutional or unlawful statute, and is erroneous, and that comprehensive real estate holding tax is refunded. On June 26, 2007, the Defendant rejected the request against the Plaintiff.

C. The Plaintiff dissatisfied with the instant disposition and filed a tax appeal on September 21, 2007, but was dismissed on November 29, 2007.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, Eul evidence Nos. 1 and 2, and the purport of the body before oral argument

2. Relevant statutes;

Attached Form 1. The entry in the relevant Acts and subordinate statutes are as follows.

3. Whether the instant disposition is lawful

The Plaintiff’s assertion, the instant issues, and the determination are as follows: (a) the Plaintiff’s assertion, the instant disposition is deemed lawful; (b) the reasoning of the Seoul District Court Decision 2009Guhap1607, Feb. 16, 2010; and (c) the addition is as follows.

A. Whether the Comprehensive Real Estate Holding Tax Act is unconstitutional or not

Since the Comprehensive Real Estate Holding Tax Act was enacted on January 5, 2005 by Act No. 7328 of Jan. 5, 2005, there was a debate on the constitutionality of the Comprehensive Real Estate Holding Tax Act, and it is still obvious that it has been now.

However, there is no final declaration that the comprehensive real estate holding tax law itself should be excluded in accordance with the procedures prescribed by the Constitution and the laws and regulations beyond the doubt and possibility of the unconstitutionality of the comprehensive real estate holding tax law after a considerable period of time has passed since the enactment date of the law.

Furthermore, Article 182 of the Local Tax Act, which is a taxation on land, is the Article 182 of the Gross Real Estate Tax Act, and Article 182 of the Local Tax Act continues to maintain its normative power after the establishment of June 16, 1989.

In addition to the improvement of the comprehensive real estate holding tax system by reflecting the legitimate rights of land owners in the comprehensive real estate holding tax law, the application of the comprehensive real estate holding tax law itself cannot be ruled out comprehensively.

B. According to Article 182 of the Local Tax Act, in the case where the part concerning the "special aggregate taxation" under Article 182 (1) 2 of the Act on Comprehensive Real Estate Holding Tax is unconstitutional, the principle of general aggregate taxation is applied, and separate aggregate taxation and separate taxation are exceptions. Thus, it shall be subject to general aggregate taxation or general aggregate taxation, which is the principle. As alleged by the Plaintiff, even if the part concerning the "special aggregate taxation" under Article 182 (1) 2 of the Local Tax Act in Article 11 of the Comprehensive Real Estate Holding Tax Act is unconstitutional, it is apparent that the original conservation forest of this case is not subject to separate aggregate taxation, so it shall be subject to comprehensive aggregate taxation, which is the principle for conservation forest of the original form of this case.

Therefore, the removal of the portion of the special aggregate taxation under Article 182 (1) 2 of the Local Tax Act cannot be relieved by simply removing the portion of the special aggregate taxation under Article 11 of the Comprehensive Real Estate Holding Tax Act.

(c) Whether the proviso to Article 131-2(3)14 of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817, Dec. 30, 2006) (Provided, That forest land for a membership golf course under the Installation and Utilization of Sports Facilities Act shall be excluded) is unconstitutional or illegal;

2. Forest land: The forest land prescribed in the following items: Provided, That the forest land for membership golf courses pursuant to the Installation and Utilization of Sports Facilities Act shall be excluded; (a) the original form of which is preserved pursuant to Article 12 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act; and (b) the forest land for which the original form is preserved according to the consultation on environmental impact assessment under Articles 4 and 17 of the Act on Assessment of Impacts of Environment, Traffic, Disasters, etc. among the land for the general recreation business and resort complex business under the Tourism Promotion Act; and the specific matters prescribed in Article 131-2 (3) 14 of the Enforcement Decree of the Local Tax Act, which are amended by Presidential Decree No. 2087, Jun. 25, 2008;

"However, if the proviso of Article 131-2 (3) 14 of the Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817 of Dec. 30, 2006) (hereinafter "the proviso of this case") is unconstitutional or erroneous, the disposition of this case is unlawful. Thus, the key issue of this case is whether the provisions of this case are unconstitutional or unlawful.

From the standpoint of the Plaintiff, the instant proviso provisions cannot be easily accepted. However, in light of the following: (a) the Plaintiff’s attempt to discriminate from a public golf course into a closed-type, not open-end, and operated in a closed-type, not open-type; (b) the characteristics of the membership golf course as well as the characteristics of the forest being recognized as property in addition to the provision of sports opportunity; and (c) the characteristics of the property are being provided for the use of the golf course; (d) no one can access the boundaries of the golf course; (b) any person still serves as blocking the golf course and the forest; and (c) only the general public, can access the forest in its original form; (d) land characteristics of the land where it is impossible to create a large-scale membership golf course without damaging the area of the land to be compared to the population and considerable parts of the mountainous district and the forest; and (e) land to be incorporated into a closed-type membership golf course; and (e) forest in its original form is not only part of

(d) Other:

This case’s disposition cannot be deemed unlawful solely on the ground that the tax base applied is too higher than the market price, and that the tax assessment based on the officially announced land price can be directly contested, separate from the process of determining the officially announced land price.

(e) Methods by which the State realizing litigation and economy;

1) The Plaintiff, pursuant to Articles 107(2) and 111(1)1 of the Constitution, may assert the illegality of the provisions of the instant proviso, which are the key issues of the instant case, and the Supreme Court and the Constitutional Court finally have the authority to do so. In order to discuss the public opinion on the instant proviso provisions, the judgment of the first instance court on the instant case is necessary.

2) Where the same issue exists in many cases, and one of the parties is the State, rather than responding to or appeal by the State, if either party gives advice to follow the final judgment of the judiciary on the preceding or specific cases, or promises to promise to the same contents as above to the public and the State, it may benefit all of the people and the State, and such confirmations, etc. should be encouraged in terms of the protection of the rights of the people and the economy of litigation. However, in this case, there is no defendant's opinion, and considering the inherent characteristics of the judiciary, it seems that there is no possibility of the defendant's opinion, etc.

3) According to the above determination, a judgment on a case is rendered.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

2.

Whether the disposition of this case is legal

A. Summary of the plaintiff's main office

(1) The unconstitutional president of the Gross Real Estate Tax Act itself;

The Comprehensive Real Estate Holding Tax Act violates the basic contents of property rights, ② the objectivity and fairness of the evaluation as a taxation on unrealized gains, ③ the prohibition of double taxation violates the principle of prohibition of double taxation, ④ the local finance right is violated by incorporating taxable items subject to the Local Tax Act into national tax, ⑤ the discrimination against the person holding real estate and the person holding stocks, deposits, etc., thereby violating the principle of equality, ⑤ the limitation of ‘distribution of income' permitted by the Constitution, and also violates Article 119(2) of the Constitution.

(2) Violation of the principle of no taxation without law and the principle of no comprehensive delegation under Article 11 of the Comprehensive Real Estate Holding Tax Act and Article 182(1) of the former Local Tax Act

Article 11 of the Comprehensive Real Estate Tax Act and Article 182 (1) of the former Local Tax Act classifys objects of taxation into objects of taxation subject to general aggregate taxation, objects of taxation subject to special aggregate taxation, objects of taxation subject to separate taxation, and objects of separate taxation under subparagraph 1 of the same Article provide that "land excluding land subject to separate aggregate taxation or objects of separate taxation," and subparagraph 2 of the same Article provides that "land prescribed by the Presidential Decree, which has considerable reason to be subject to separate aggregate taxation as of the base date of taxation, and is prescribed by the Presidential Decree," and "land which has a reason to be subject to separate aggregate taxation" shall be comprehensively delegated to subordinate Acts and subordinate statutes, even though they are the most important provisions in the division of objects of separate taxation subject to general aggregate taxation and objects of comprehensive taxation

(3) Claim for violation of the principle of equality under Article 131-2(3) of the former Enforcement Decree of the Local Tax Act and infringement of freedom of occupation.

(A) Principles of equality

Article 131-2(3) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817, Dec. 30, 2006; Presidential Decree No. 20887, Jun. 25, 2008; Presidential Decree No. 20887, referred to as the "Enforcement Decree of this case") provides that forest subject to the original preservation of a membership golf course shall be subject to general aggregate taxation. This is ① treating membership golf course and public golf course (forest subject to special aggregate taxation is defined as forest subject to special aggregate taxation) differently without reasonable grounds; ② treating the original preservation forest of a golf course as the same as the "land for sports facilities where the nature of the forest subject to the original preservation of the golf course is different" and the "land for non-business use for which the nature of the forest subject to special aggregate taxation is different", and thus, it is contrary to the principle of equality under the Constitution.

(B) Freedom of Employment Selection

The heavy taxation on the forest land preserved in its original form of the golf course infringes on the freedom of choice of occupation by making it virtually difficult to open and operate the golf course due to the significant impact on the profit or loss of the golf course.

(4) Sub-determination

Therefore, the instant disposition is unconstitutional and illegal as it is based on the unconstitutional Comprehensive Real Estate Tax Act, Article 182(1) of the former Local Tax Act, and the Enforcement Decree of the instant case.

B. Determination on the master real estate holding tax itself

(1) Legislative discretion and legislative purpose of the Comprehensive Real Estate Holding Tax Act

Today, as well as the original function of the nation's fulfillment of the financial demand, there are various functions such as re-distribution of income, proper distribution of resources, and adjustment of economy. Therefore, in determining the citizens' tax burden, it is necessary to make a comprehensive policy judgment throughout the nation's overall government such as finance, economy, and social policies, as well as a specialized technical judgment in determining the tax requirements. Therefore, in determining what contents of tax laws, the issue should be determined by the legislators based on accurate data about the actual state of the nation's finance, social economy, national income, and people's lives. Thus, this can be said to be left to the policy and technical judgment based on the legislative discretion of the legislators (see, e.g., Supreme Court Decision 2005HunBa75, Jan. 17, 2007; Supreme Court Decision 19-1, 23, 47, etc.). Therefore, determination of the tax requirements in the tax law belongs to the legislative discretion of the legislator, so long as such provision is not remarkably unreasonable, whether the comprehensive real estate holding tax is unconstitutional or not.

Meanwhile, the purpose of the Comprehensive Real Estate Tax Act is to contribute to balanced taxation of local governments and sound development of the national economy by imposing comprehensive real estate holding tax on high-amount real estate holders, enhancing equity in tax burden on real estate holding, and stabilizing the price of real estate (Article 1). In other words, the Comprehensive Real Estate Tax Act is to contribute to resolving income imbalance by imposing taxes conforming to the principle of ability to pay taxes, restrain real estate speculation, change the composition ratio of land holding, while holding taxes at the time of legislation, while the amount of comprehensive real estate holding tax was low at the time of legislation, but the amount of transaction tax is to correct the tax distortion phenomenon, which is high-rate. According to such legislative purpose, comprehensive real estate holding tax takes the form of imposing taxes according to cumulative tax rate as national taxes in order to impose taxes corresponding to the owner's re-performance by taking the amount exceeding a certain amount of tax imposed on housing and land which is subject to property tax, which

(2) As to whether the intrinsic content of the property right is infringed

In general, the collection of taxes in relation to the relationship between taxes and property rights is based on the duty to pay taxes to the public, and thus, it does not infringe on property rights in principle. However, in a case where the result of the complete denial of the private property system, the gratuitous confiscation of property rights, and the deprivation of property rights by retroactive legislation is brought about, it may infringe on the essential contents of property rights. As such, in imposing and purifying taxes for the realization of public interest, the State may impose and allocating taxes only to the extent that the taxpayer remains (see Constitutional Court Decision 9Hun-Ba3, Feb. 22, 2001; Supreme Court Decision 13-1, 226, 245).

In the case of comprehensive real estate holding tax, Articles 35(3) and 122 of the Constitution provide a broad legislative discretion on the right to land and property to the State, and impose an obligation on all the people to endeavor to live a pleasant residential life through housing development policies, etc. The Comprehensive Real Estate Holding Tax Act is difficult to deem that the Comprehensive Real Estate Holding Tax Act infringes on the essential contents of property rights by comprehensively taking account of the following: (a) the purpose of enhancing tax balance on the possession of real estate by imposing the comprehensive real estate holding tax on a high-amount real estate holder as a concrete method for realizing the above constitutional provisions; (b) promoting the price stability of real estate; (c) promoting balanced local finance and the sound development of the national economy by stabilizing the prices of real estate; and (d) the comprehensive real estate holding tax does not collect all real estate values within a short period in light of the tax rate; and (c) the comprehensive real

(3) As to the taxation issue of unrealized gains

The basic nature of the comprehensive real estate holding tax is to be imposed on the basis of the fact that the real estate holding tax is held by recognizing the tax-bearing capacity per se in the holding stage, and it is difficult to regard it as a profit tax imposed on the unrealized acquisition (price increase) of real estate. Even though the comprehensive real estate holding tax has the nature of profit-making tax, and it has the nature of taxation on unrealized acquisition, whether to impose unrealized acquisition is a matter of legislative policy that is determined by considering the purpose of taxation, characteristics of taxable income, problems in taxation technology, etc., and does not conflict with or are incompatible with the concept of tax under the Constitution (see, e.g., Supreme Court Decision 92Hun-Ba49, Jul. 29, 1994; Supreme Court Decision 6-2, 64, 96-97, etc.).

(4)It is in view of whether the principle of double taxation prohibition was violated or not;

Since the comprehensive real estate holding tax recognizes the ability to pay taxes per se in real estate holding more than a certain value and its legislative purpose is different from the property tax items, as well as from the transfer income tax imposed on the profit (price increase) accrued during the holding period, the subject of taxation, taxation requirements and taxation purposes differ from the transfer income tax imposed on the profit (price increase). Thus, it cannot be deemed as double taxation in relation to the property

(5) Whether the local finance right is violated or not.

The issue of whether the comprehensive real estate holding tax should be a national tax or a local tax depends on the purpose of taxation and legislative policy of the relevant tax, and there is no inevitable reason that the comprehensive real estate holding tax should be a local tax. Moreover, the comprehensive real estate holding tax should be a local tax, because the comprehensive real estate holding tax has been separately established for the portion exceeding a certain value while maintaining property tax, which is a local tax, it cannot be deemed that the right

(6) It is in mind against the principle of equality.

The Gross Real Estate Tax Act imposes comprehensive real estate holding tax only on a person holding a high-amount real estate property, thereby discriminatings against those holding property rights, such as deposits or stocks of the same value. However, in light of the following: (i) Land or housing is subject to restrictions on supply unlike stocks, etc.; (ii) housing problems are serious; (iii) price increase or speculation phenomenon is significant compared to deposits or stocks, etc. due to imbalance in supply and demand of land and housing; and (ii) land or housing problems lead to the issue of the right to live a decent life as an essential goods for a living; and (iii) land or housing issues are intrinsic differences from other goods in that the public nature of the land or housing is significant; thus, such discriminatory treatment cannot be deemed to violate the principle of equality.

(7) In accordance with Article 119(2) of the Constitution; and

In full view of the above various circumstances, it is difficult to view the Comprehensive Real Estate Tax Act as a prior regulation beyond the “regulation and coordination on the economy for maintaining the adequate distribution of income pursuant to Article 119(2) of the Constitution.”

C. Determination on Article 11 of the Gross Real Estate Tax Act and Article 182(1) of the former Local Tax Act

(1) As to the assertion against the principle of no taxation without law and prohibition of comprehensive delegation

(A) Article 11 of the Gross Real Estate Tax Act provides that the comprehensive real estate holding tax on land located in Korea shall be imposed separately from the general aggregate taxation subject to Article 182(1)1 of the Local Tax Act and the special aggregate taxation subject to Article 182(2)2 of the same Act. The Plaintiff claims that the portion related to Article 182(1)1 and 2 of the former Local Tax Act in the above provision is unconstitutional.

(B) Whether Article 11 of the Gross Real Estate Tax Act (Article 182(1)1 of the Jung-gu Local Tax Act) is unconstitutional

Article 182 (1) 1 of the former Local Tax Act provides that the land, other than the land subject to a separate aggregate taxation or separate taxation, among the land owned by a person liable to pay tax as of the base date of taxation, shall be subject to general aggregate taxation, and does not comprehensively delegate general aggregate taxation to the Enforcement Decree of the same Act. Thus, the argument that the above provision violates the principle of

(C) Whether Article 11 of the Comprehensive Real Estate Holding Tax Act is unconstitutional on Article 182(1)2 of the former Local Tax Act

1) Since it is difficult to see that the forest land preserved in its original form falls under the "land annexed to a building as prescribed by the Presidential Decree" in the main sentence of Article 182 (1) 2 of the former Local Tax Act, the legal provision directly related to this case is the part of "land as prescribed by the Presidential Decree, which has a considerable reason to be subject to separate taxation" in the main sentence of Article 182 (1) 2 of the former Local Tax Act (hereinafter "the legal provision of this case").

2) The Korean Constitution and the prohibition of comprehensive delegation, etc.

A) The contents of the constitutional norms are completed through a logical and systematic constitutional interpretation process. There are various methods of interpretation of the Constitution, such as literary interpretation and teleological interpretation. However, in the context of the same sex law as Korea, the State of the same sex language as Korea must faithfully interpret the provisions of the Constitution, and should not exceed the bounds of the text of the sexual literature law. (1) Therefore, we first examine whether the principle of prohibition of comprehensive delegation or the principle of no taxation without law, which is a tax legal expression, has the basis for our positive constitutional law.

B) Legal review

In the United States, even if there is no individual and specific delegation of the law, the order issued by the administration shall, in principle, be binding on the people. However, it cannot be contrary to the laws enacted by the Congress. In other words, there is only the priority of the law in the United States, and there is no reservation of the law. The U.S. tax law has a comprehensive delegation provision that "the Minister of Finance and Economy may determine all rules and regulations necessary for the enforcement of the law."

In the Japanese Constitution, there is no constitutional provision that serves as the basis for the principle of prohibition of comprehensive delegation, and in France, all orders can be determined by an order unless they are listed as legislative matters in the Constitution.

In the case of Germany, Article 80 of the Framework Act provides that "(i) the federal government, the federal minister, or the state government may be delegated the authority to establish laws and regulations by law. In this case, the content, purpose, and scope of the delegated authority must be determined by law." Therefore, the National Assembly under the Constitution has a duty not to comprehensively delegate subordinate administrative legislation in determining the rights and obligations of the people. As such, the interpretation of the basic law of Germany can be derived from the principle of prohibition of comprehensive delegation. This is the political system of 19th century, which was made by the king with king as a starting point and the compromise between citizens' ranks, which was made in the 19th century, by suppressing king with no specific legal basis.After Germany enacted the basic law on May 23, 194, it is difficult to clearly interpret the provisions of the law in the direction of unconstitutionality and its scope of the law in question, but it is also impossible to clearly interpret the provisions of the law in question in the direction of unconstitutionality.

C) Interpretation of our Constitution

If we find the grounds for the principle of prohibition of comprehensive delegation in the Constitution of the Republic of Korea, the phrase "the President may issue Presidential Decrees with regard to the matters to be determined and delegated specifically by the Act" in Article 75 of the Constitution is almost common. However, this clause is part of Chapter IV of the Constitution, which is only the Presidential Decree in Section 1 of the Constitution. In other words, it is not a provision prohibiting the National Assembly from conducting comprehensive delegation. There is no provision prohibiting the National Assembly from establishing ordinances in accordance with Article 95 of the Constitution. The Minister of each Ministry has enacted ordinances in accordance with Article 95 of the Constitution. In addition, Article 38 of the Constitution provides that "the people are obliged to pay taxes as prescribed by the Act." Article 59 of the Constitution provides that the items and rates of taxes shall be determined by the Act, but does not stipulate all the detailed requirements for taxation, etc. Therefore, it is unreasonable to derive the principle of prohibition of comprehensive delegation under the Constitution or the principle of prohibition of no taxation without law.

Since the Republic of Korea's king was a person who was taken over king by king and could not have democratic legitimacy, it was necessary for king to restrain the matters related to the rights and obligations of the people without any specific delegation by law. However, in the modern welfare state, the administrative function has been expanded in the modern welfare state, and in the case of Korea, the president, who is the government, has been elected by the direct election of the people. Thus, the National Assembly may delegate to the administrative legislation, such as Presidential Decree, to the extent of its own exercise, and in the case of other legal requirements, to respond flexibly to the rapid change of administrative demand in the modern welfare state, to the extent that it is possible for the National Assembly to delegate to the administrative legislation, such as Presidential Decree, to the extent that it exercises its own exercise, and in the case of other legal requirements, it can be interpreted in accordance with our Constitution's structure and language. Of course, the government bears the duty to faithfully implement administrative legislation that does not violate the applicable law in accordance with Article 75 of the Constitution.

However, it is necessary to clearly determine matters concerning the rights and obligations of the people in accordance with the principle of the rule of law, which is the basic principle of our Constitution, by law, and this is also the same in the field of tax law.However, in this case, if the scope or limit of delegation can be objectively determined in light of the overall system of the pertinent law and relevant laws, the requirement for clarity, which is the content of the

3) Determination as to the legal provisions of this case

The purpose of Article 182(1) of the former Local Tax Act, which separates objects of property tax on land as above, is to establish the ability to taxation principle, to prevent excessive possession of land through taxation, facilitate supply and demand of land, and expand the base of land ownership by establishing a healthy life period for the people's lives, and to prescribe the land price stability and expansion of the base of land ownership. The purport of Article 182(1) of the same Act, which is to protect the excessive possession of land subject to general aggregate taxation, as well as to supplement the unreasonable outcomes from general aggregate taxation by imposing tax in accordance with separate standards, in that it is unnecessary to allow small-scale possession of land subject to general aggregate taxation but it is limited to permission.

Although land prescribed by the Presidential Decree is somewhat abstract and comprehensive, it is difficult to find common signs that can properly classify its kind and scope due to the institutional nature of separate cumulative taxation because it is very diverse and different factors. Furthermore, it is inappropriate to regulate the issue of whether the land is subject to separate cumulative taxation in a flexible and flexible manner in response to changes in economic situation, change in land policy, change in related laws and regulations, etc. Therefore, it is inappropriate to regulate individual and detailed matters as prescribed by the Presidential Decree individually and specifically after establishing a somewhat detailed standard. In light of the above, there is an inevitable reason not to specifically delegate the legal principles to the National Assembly regarding more detailed matters. In addition, in order to properly cope with changes in the modern society where the administrative area expands, there is an inevitable aspect of delegation legislation, which is a close relation to the public interest and economic situation, and it is also difficult to accomplish the legislative purpose of the National Assembly's comprehensive taxation system as well as to ensure that the comprehensive taxation system can be established and applied to golf clubs in accordance with the Constitution.

(2) As to the assertion regarding the violation of the principle of no taxation without law and infringement of property rights

The plaintiff asserts that the legal provision of this case is in violation of the principle of no taxation without law, infringes property rights, is a double taxation, is a taxation on unrealized profits, infringes on the local finance right, infringe on the freedom of choice, infringe on the freedom of occupation, violates the principle of equality, and is also in violation of Article 119(2) of the Constitution.

However, in determining the unconstitutionality of a statutory provision, the basis of whether the statutory provision itself contains unconstitutional contents should be determined. The relevant statutory provision cannot be deemed unconstitutional solely on the ground that the enforcement decree or enforcement decree enacted pursuant to the constitutional statutory provision contains unconstitutional contents.

In this case, the legal provision of this case itself does not provide any disadvantage to the plaintiff in relation to the relation with the plaintiff. Whether the enforcement decree enacted later provides the preserved forest for the original form of a membership golf course as a general aggregate subject to general aggregate subject to separate taxation is only a taxation method against the plaintiff depending on whether it is stipulated as a general aggregate subject to separate taxation. Ultimately, the effect of the plaintiff's violation of the principle of no taxation without representation, infringement of property rights, etc. is generated by the provisions of the Enforcement Decree of this case. Therefore, the plaintiff's assertion that the unconstitutionality of the legal provision of this case, which is the basis of the unconstitutionality of the Enforcement Decree of this case, is without merit.

D. Determination as to the assertion of violation of the principle of equality and freedom of occupation under the Enforcement Decree of the instant case

(1) In principle, whether it is against the principle of equality or not;

The principle of equality under Article 11(1) of the Constitution of the Republic of Korea is the principle of tax equality to be implemented in the field of tax law. The imposition and collection of taxes must be conducted fairly and equally commensurate with the taxpayer's ability to pay taxes, and discrimination or preferential treatment against a specific taxpayer is not allowed without reasonable grounds (see, e.g., Supreme Court Decision 98Hun-Ma55, Nov. 25, 1999; Supreme Court Decision 11-2, 593, 608, Constitutional Court Decision 93Hun-Ba2, Jun. 26, 1996; Supreme Court Decision 8-1, 525, 535, Jun. 26, 1996; Supreme Court Decision 93Hun-Ba2, Jun. 26, 1996; Supreme Court Decision 8-1, 525, 535).

First, the enforcement decree of this case provides that forest land preserved in its original form shall be subject to general aggregate taxation, and forest land preserved in its original form shall be subject to special aggregate taxation. ① In the case of a membership golf course, the construction cost of the golf course is less than the initial financing burden by appropriating it to the membership fee of its members, whereas the public golf course bears a lot of initial financing burden; ② in the case of a membership golf course, the membership of a membership golf course is classified into high amounts and is subject to various regulations as it is classified into a private property, while in the case of a public golf course, various support, such as tax support, etc., are provided for a public golf course to promote golf as a mass sports in which ordinary people enjoy. In light of the above intrinsic difference between the membership golf course and a public golf course, the above discriminatory treatment cannot be deemed to violate the principle of equality due to reasonable grounds.

In addition, Article 2 of the Enforcement Decree of the instant case treats the “forest preserved in the original form of a golf course that needs to be preserved as it is without any artificial alteration of its form and quality,” and treats it differently from the “land for sports facilities where benefits are created,” and “a simple forest connected to a golf course.” The “forest preserved in the original form of a golf course” is essentially identical to the “land for sports facilities where benefits are created,” in that it creates an effect of separating it from a hole or an outer area, which should be legally held for the golf course business, and creates and maintains a beautiful landscape, and increases its utility by integrating it with a golf course, thereby increasing its utility.” Therefore, the Enforcement Decree of the instant case cannot be said to violate the principle of equality.

(2) Whether the freedom of occupation is infringed or not;

On the other hand, it is difficult to see that only heavy taxation on the forest land preserved in its original form of a golf course has a decisive impact on whether it has a golf course profit or loss, and as well as other enterprises under the free market and economic order, the issue of whether it has a profit or loss depends on the rationality of economic choice and efficiency of corporate management. Therefore, even if the gross real estate holding tax on the forest land preserved in its original form, even if it bears such economic burden, it is a matter of economic choice whether it would not acquire the golf course and operate the golf course even if it bears such economic burden, and the gross real estate holding tax itself does not legally or actually prohibit the operation of the golf course, and therefore, the Enforcement Decree of the instant case cannot be deemed as infringing on the freedom of occupation (see, e.g., Supreme Court Decision 9HunBa64, Feb. 25, 199; 11-1, 96, 113-14, etc.

E. Sub-decision

Therefore, the Plaintiff’s assertion that the instant disposition is unconstitutional, based on the Comprehensive Real Estate Tax Act, the instant legal provision, and the Enforcement Decree provision, is unlawful, is without merit, and the instant disposition is lawful.