[1] The validity of the disposition on default of the charges for excess ownership as a separate administrative disposition after the decision of unconstitutionality is made by the disposition on imposition of the charges for excess ownership on the housing site which became final and conclusive prior to the decision of unconstitutionality on the whole

[2] Whether the equity problem between a bona fide payer and an unpaid person can be a basis for allowing subsequent disposition on default after the decision of unconstitutionality on the whole of the former Act on the Ownership of a Housing Site (negative)

[1] The imposition disposition of excess ownership charges, attachment disposition, and collection disposition of other property are separate dispositions separate from each other. Thus, even if the imposition disposition of excess ownership charges or the attachment disposition of other property based on them became final and conclusive, there should be legal grounds effective at the time of the pertinent disposition in order to take the procedure of disposition on default, such as attachment disposition, collection disposition, etc. for other property. Thus, even if the imposition disposition on excess ownership charges and attachment registration based on the former Act on April 29, 1999 (repealed by Act No. 5571 of Sep. 19, 198) are already made and each disposition becomes final and conclusive after the decision of unconstitutionality, if the above disposition is conducted as a separate administrative disposition after the decision of unconstitutionality, such disposition is without a law based on which the defect is significant and obvious, and thus, it cannot be deemed as null and void.

[2] If the procedure for subsequent disposition on default, such as attachment or collection of excess ownership charges, which became final and conclusive after the decision of unconstitutionality of the former Act on September 19, 198 (repealed by Act No. 5571 of Sep. 19, 1998), is not possible, there may be a problem of equity between the person who has already paid the excess ownership charges or who has been forced to collect them. However, in general, the circumstance that the law is in violation of the Constitution is not clear and objective before the Constitutional Court's decision of unconstitutionality is rendered, unless there are special circumstances, it is merely an inevitable circumstance that the administrative disposition based on the unconstitutional law is merely a cause for revocation, and it is nothing more than an inevitable circumstance arising from the fact that it is not a legal ground for the State to receive or hold the excess ownership charges due to the disposition that has already become final and conclusive, and thus, it cannot be a ground for subsequent disposition on default or collection of the excess ownership charges based on the former Act on September 19, 1998.

[1] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 1998); Article 24 of the National Tax Collection Act / [2] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 1998); Article 24 of the National Tax Collection Act

[Judgment of the court below]

Korea

Busan High Court Decision 2001Na3931 delivered on August 17, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571, Sep. 19, 1998; hereinafter referred to as the "Alternative Commercial Act") provides that "if a person liable to pay excess ownership charges in the housing site fails to fully pay the charges, additional dues, etc. by the designated deadline after receiving a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected in arrears pursuant to the provisions of Article 3 of the National Tax Collection Act." However, the above provisions of Article 30 became invalid as of April 29, 199 as the Constitutional Court's decision of unconstitutionality as to the whole of the Housing Act on April 29, 199, and there are no other legal grounds that can compel the payment of excess ownership charges in the housing site.

In addition, Article 3 (3) of the Addenda to the Abolition Act (Act No. 5571 of September 19, 1998) provides that "the base date for the imposition of the excess ownership charge at the time of the enforcement of this Act shall be determined by the previous provisions regarding the imposition, collection, etc. of the excess ownership charge for the housing site which was imposed or is to be imposed under the previous provisions as the excess ownership charge for the housing site prior to December 31, 1997." However, the above supplementary provisions under the premise that the alternative commercial law is constitutional, and thus, the above supplementary provisions are no longer applicable as long as the decision of unconstitutionality for all of the alternative commercial law was made (see Supreme Court Decision 2002Da2294, April 12, 2002).

In addition, the imposition of excess ownership charges, attachment disposition, and collection disposition of other property, which are the procedure for disposition on default, are separate dispositions separate from each other. Thus, even if the imposition of excess ownership charges or the attachment disposition of other property based thereon becomes final and conclusive, there should be legal grounds as at the time of the relevant disposition in order to take the procedure for disposition on default, such as attachment disposition, collection, etc. on other property. Even if the disposition on excess ownership charges, attachment disposition, and attachment registration based thereon already became final and conclusive before the decision on unconstitutionality becomes final and conclusive, if the disposition on default was conducted as a separate administrative disposition after the decision on unconstitutionality, such disposition on default with respect to other property becomes final and conclusive due to a significant and obvious defect, and thus, it cannot be said that the disposition on default becomes null

The court below determined that the head of Seo-gu Busan Metropolitan City imposed and notified the Plaintiff the total amount of KRW 174,684,170 on the aggregate of the charges for excess ownership and additional charges for the housing site from 193 to 197, but the Plaintiff did not pay the above charges for excess ownership and additional charges for the land owned by the Plaintiff, and the head of the above Dong-gu deposited the land expropriation compensation of KRW 123,515,90 on the other land owned by the Plaintiff included in the road construction section, which is an urban planning project on December 10, 1999, and then ordered the Plaintiff to collect the above charges for excess ownership and additional charges for the housing site from 193 to 197, and that the Defendant was liable to collect the charges for excess ownership and additional charges for the above total amount of the charges for excess ownership (hereinafter referred to as "the attachment disposition of this case"), and thus, the Defendant imposed the above charges for excess ownership and additional charges for each of the above 1993 and the above collection of the charges for the above unconstitutionality.

In light of the records, the contents of the relevant statutes, and the legal principles as seen earlier, the above recognition and determination by the court below is justifiable, and there is no error of law such as misunderstanding of legal principles as to "collection" under Paragraph 3 of the Addenda to the repealed Act on the Ownership of Housing Site or procedure

2. If a subsequent disposition on default, such as attachment or collection, by a disposition on imposition of excess ownership charges on a housing site, cannot be carried out after the decision of unconstitutionality on the housing site becomes final and conclusive, there may be a problem of equity with the person who has already paid or been forced to collect the excess ownership charges. However, the circumstance that the law is in violation of the Constitution is not objectively clear before the decision of unconstitutionality is rendered by the Constitutional Court, barring any special circumstance, the administrative disposition based on the unconstitutional law is merely a cause for revocation, unless there are special circumstances, and it is only an inevitable circumstance arising from the fact that the State is not a legal ground for invalidation, and it is not a reason for holding the excess ownership charges, which have already been received or collected by the disposition that has already become final and conclusive, and thus, it cannot be a ground for allowing subsequent disposition on default, such as attachment or collection, by a disposition on imposition of excess

The decision of the court below is not proper in light of the legal principles as seen earlier, but the decision of the court below, as it did not recognize the retroactive effect of the decision of unconstitutionality under Article 47 (2) of the Constitutional Court Act, is justified, and there is no error of law such as misunderstanding of legal principles as to equity between the payer and the unpaid.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)