Seoul Administrative Court 2009Guhap1723 ( October 25, 2009)

The provisional decision of inconsistency with the Constitution does not affect the legal provisions of this case

The decision of inconsistency with the Constitution of this case is reasonable to deem that the decision of inconsistency with the Constitution of this case ordering the provisional application of the legal provisions of this case to continue to apply the legal provisions of this case by the time of enforcement of the improvement legislation.

Article 68 of the Constitutional Court Act

2012Revocation of disposition of revocation of imposition of inheritance tax

Gangwon A

The director of the tax office.

Seoul Administrative Court Decision 2009Guhap1723 Decided June 25, 2009

March 6, 2014

March 27, 2014

1. The plaintiff's petition for retrial is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (the plaintiff).

Cheong-gu Office

The decision of review is revoked, and the disposition of imposition by the defendant (the defendant, hereinafter referred to as the "defendant") against the plaintiff (hereinafter referred to as the "Plaintiff") on January 1, 2008 shall be revoked."

1. Details of the disposition;

A. The plaintiff's status and imposition of inheritance tax

" 1) 망 노BB(이하망인'이라 한다)은 2005. 6. 13. 사망하였고 처인 원고와 아들인 노CC, 노DD가 망인의 재산을 공동으로 상속하였다.", " 2) 원고와 노DD(이하원고 등'이라 한다)는 20↓5. 12. 12 피고에게 배우자 상속공제액 OOOO원을 적용하여 상속세 과세표준을 신고하고, 상속재산에 대하여 상속인들 사이에 소송이 진행 중이어서 상속재산을 분할할 수 없는 부득이한 사유가 있다며 상속재산미분할신고서를 제출하였다.", " 3) 피고는, 2007. 5. 9.부터 2007. 7. 8.까지 망인의 상속재산에 대한 상속세 세무조사결과 구 상속세 및 증여세법(2005. 7. 13. 법률 제7580호로 개정되기 전의 것, 이하법'이라 한다) 제19조 제2항 단서에서 정한 배우자상속재산분할기한의 다음날부터 6월이 되는 날까지 상속재산이 분할되지 않았다는 이유로, 원고 등이 신고한 배우자 상속공제액 OOOO원의 적용을 부인하고 대신 법 제19조 제3항에 따른 배우자 상속공제액 5억 원을 적용하여, 2008. 1. 1. 원고 등에게 상속세 OOOO원을 결정・고지하였다(이하이 사건 처분'이라 한다).", " 4) 원고 등은 이에 불복하여 심판청구를 하였으나, 2008. 10. 16 조세심판원으로부터 기각결정을 받고, 이 사건 처분의 취소를 구하는 소(서울행정법원 2009구합1723, 이하 재심대상사건'이라고만 한다)를 제기하였다 원고 등은 재심대상사건 계속 중 법 제19조 제2항(이하이 사건 법률조항'이라 한다)이 헌법 제11조 평등의 원칙에 위반된다는 이유 등으로 위헌제청신청(서울행정법원 2009아717)을 하였으나, 2009. 6. 25. 이 법원으로부터 기각결정을 받음과 동시에, 재심대상사건에 대하여도 청구기각 판결을 선고받았다. 원고 등은 이에 불복하여 항소하였으나 2009. 11. 6. 항소를 취하하여 1심 판결이 그대로 확정되었다.", 5) 노DD는 2011. 11. 14 사망하였고, 원고가 뇌병수의 재산을 상속하였다.

B. Adjudgment on division of inherited property between the Plaintiff, etc.

“1) The Plaintiff et al. filed a claim against Norway for an adjudication on the division of inherited property (2006 Mahap140) and the adjudication on the contributory portion (2007 Mahap66). On February 6, 2009, the Seoul Family Court dismissed the Plaintiff et al.’s claim for the entitlement to a contributory portion from the Seoul Family Court and divided the inherited property (Seoul High Court 2009B37). On February 8, 2011, the Plaintiff filed an appeal (Seoul High Court 2009B37) divided the inherited property division into the first, fifth, and seven real property listed in the separate list 2 from Seoul High Court, by dividing the inherited property division into the first, fourth through fourth real property from NoD. 2 list into the sole possession of NoD. 2, and NoD was subject to an adjudication to pay OOCO to the Plaintiff, and the Plaintiff filed an appeal (Supreme Court 2011Do32, Jun. 20, 2011).

C. Constitutional Court's decision of inconsistency with the Constitution

"The plaintiff et al. filed a constitutional complaint (the Constitutional Court 2009Hun-Ba190) against the legal provisions of this case (the Constitutional Court 2009Hun-Ba190) on the basis of Article 68 (2) of the Constitutional Court which was decided to dismiss the request for adjudication on the unconstitutionality of law during the period of review. On May 31, 2012, the legal provisions of this case had legitimate legislative purpose to prevent the spouse's spouse from attempting to transfer inherited property without compensation after receiving inheritance deduction and to determine the tax legal relations with respect to inheritance early. However, in cases where there are unavoidable circumstances where it is difficult to complete division of property within the statutory period because the substantive dispute over inheritance continues, such as inheritance division trial, and there is no need to open a way to reflect the result of the adjudication in the calculation of inheritance tax by the subsequent request for adjudication on the unconstitutionality of law, and there is no violation of the claimant's property rights or the heir's right to equality until the statutory period has not been completed due to unavoidable reasons such as the continuation of litigation."

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The provision of this case, which is the basis for the disposition of this case, has been ruled inconsistent with the Constitution, and upon examining the contents of the decision of inconsistency with the Constitution, the provision of this case does not continue to apply to the case subject to a review against the Plaintiff, etc.

B. Effect of the decision of inconsistency with the Constitution

1) In the text, the decision of inconsistency with the Constitution ordering a provisional application of statutes shall be made based on the actual purport of the order to continue its application by examining the grounds therefor, and there is no reason to deal with the pertinent case or concurrent cases differently (see Supreme Court Decisions 2008Du15596, Jan. 15, 2009; 2008Du1885, Sept. 29, 201).

(2) The Constitutional Court rendered a ruling of inconsistency with the Constitution to the effect that, as a matter of principle, the legal provisions of this case are in the territory of legislative discretion regarding the infringement of fundamental rights due to the legal provisions of this case, and that if the legal provisions of this case are simply unconstitutional, it would result in unreasonable result in the inheritance deduction of the heir even without justifiable grounds. As to the legal provisions of this case, rather than simply unconstitutionality decision, it would be appropriate for legislators to make provisional use of the legal provisions of this case until the amendment is made on December 31, 2013. It would be reasonable for them to apply the legal provisions of this case to the time when the legislative amendment of this case becomes unconstitutional, and the provision of this case to the effect that, in principle, it would continue to apply the legal provisions of this case to the time limit after the amendment of the law of this case to the time limit of 10 months until the amendment of the law of this case to the time limit of 20 days after the expiration of the legal provisions of this case.

Article 75(7) of the Constitutional Court Act provides that "where another constitutional complaint is accepted pursuant to Article 68(2), if a litigation case related to the relevant constitutional complaint becomes final and conclusive, a party may file a petition for a retrial." However, where a constitutional complaint which is the object of a review is accepted pursuant to Article 75(7) of the Constitutional Court Act, it shall be deemed that the relevant legal provision becomes null and void and that the relevant law is not applicable to a case subject to review." Therefore, it shall not include cases where the legal provision of this case is continuously applied like the ruling of inconsistency with the Constitution." Therefore, there is no ground for a retrial in the case subject to a review, and the plaintiff's assertion is without merit

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.