The Constitutional Court's decision on the constitutionality of an administrative disposition is only a ground for revocation of administrative disposition, not a ground for invalidation.

If the Constitutional Court, after an administrative disposition was rendered by an administrative agency based on a law, decides the law as unconstitutional, such administrative disposition shall be deemed to have any defect since it was conducted without any legal basis, or it shall not be objectively apparent, and such defect, barring any special circumstance, constitutes a ground for revocation of administrative disposition, and not a ground for

2012dan305068 Return of land excess profit tax

CHAPTER A

Korea

March 20, 2013

April 3, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 00 won with 20% interest per annum from the day after the judgment of this case to the day of complete payment.

1. The plaintiff's assertion

The plaintiff asserts that the defendant imposed land excess profit tax (hereinafter referred to as "land first tax") on the land of 000 OO-dong O-dong 000 and 000 O-dong 000 land at a leisure time under the former Land Excess Gains Tax Act (hereinafter referred to as "the former Land Excess Gains Tax Act"), and the plaintiff paid 000 won to the defendant on November 30, 1993, and the latter decision of the Constitutional Court to be inconsistent with the Constitution of the Republic of Korea on April 29, 1999, but the above first tax imposition disposition becomes null and void, and the defendant unfairly obtained the above first tax payment by the plaintiff, and thus, he must return it to the plaintiff.

2. Determination

As to the plaintiff's above argument, if the Constitutional Court decided that the law was unconstitutional after an erroneous administrative agency made an administrative disposition based on the law, the administrative disposition is found to have the same effect as that which was conducted without the legal basis. However, the defect in order to make the defective administrative disposition null and void as a matter of course should be serious, and it should be obvious, and the circumstance that the law is in violation of the Constitution is not objectively obvious before the Constitutional Court's decision of unconstitutionality is made. Thus, such defect is only a ground for revocation of the above administrative disposition, and it does not constitute a ground for invalidation automatically, barring special circumstances.

Therefore, the Plaintiff’s assertion that the imposition of the soil tax imposed on the Plaintiff by the Constitutional Court’s decision of inconsistency with the Constitution regarding the soil tax law is null and void as a matter of course is without merit (see, e.g., Supreme Court Decision 93Da41860, Oct. 28, 1994).

3. Conclusion

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