[1] The meaning of no taxation without law

[2] The validity of Article 78 (1) of the former Enforcement Decree of the Local Tax Act which provides that where a person who first becomes an oligopolistic stockholder due to the establishment, etc. of a corporation acquires stocks of a corporation from another stockholder, the acquisition tax shall be imposed on the person who acquired all stocks owned

[1] Article 38 of the Constitution provides that "All citizens shall have the duty to pay taxes under the conditions as prescribed by Act." Article 59 provides that "types and rates of taxes shall be determined by Act." This principle of no taxation without the law adopts the principle of no taxation without the law. This principle means that taxation requirements, etc. must be provided by the law enacted by the National Assembly, which is a representative body of the people, and strict interpretation and application should be applied in the enforcement of the law, and expansion or analogical application of the administrative convenience is not allowed. Thus, it violates the principle of no taxation without the law to stipulate matters concerning taxation requirements, etc. by administrative legislation such as orders or rules without the delegation of the law, or to provide an interpretation provision that expandss and expands

[2] Article 105 (6) of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 1997) provides that "Where a person who first becomes an oligopolistic shareholder due to the establishment, etc. of a corporation acquires a corporation's stocks from a shareholder, such oligopolistic shareholder shall be deemed to have acquired the real estate, etc. of the corporation." Thus, where deemed acquisition is recognized by the provision that "it shall be limited to the time when he becomes an oligopolistic shareholder due to the acquisition of stocks from the shareholder." On the other hand, Article 78 (1) of the former Local Tax Act (amended by Presidential Decree No. 14061 of Dec. 31, 1993) provides that "the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489 of Oct. 1, 197) provides that "the first oligopolistic shareholder shall be deemed to have acquired the corporation's stocks from the shareholder, and it does not conform with the provision of Article 111 (4) of the former Local Tax Act (amended by Presidential Decree).

[1] Articles 38 and 59 of the Constitution / [2] Articles 22 subparagraph 2, 66, and 105 (6) of the former Local Tax Act (amended by Act No. 5406 of Aug. 30, 1997), Article 78 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489 of Oct. 1, 1997)

[1] Supreme Court en banc Decision 86Nu694 delivered on September 2, 1987 (Gong1987, 1653) Supreme Court Decision 86Nu426 delivered on October 26, 1987 (Gong1987, 1804)

Plaintiff

Head of Busan Metropolitan Government

Busan High Court Decision 97Gu15098 delivered on June 17, 1998

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. On the first ground for appeal

In light of the records, the judgment of the court below is just in the determination of the evidence which rejected the plaintiff's assertion that the beneficial shareholder of the whole shares issued at the time of incorporation of the non-party company is the plaintiff and the remaining shareholders are merely the shareholders, and even if the non-party 1 among the oligopolistic shareholders was transferred 50 shares of the non-party 2, it does not constitute the acquisition of shares from the shareholder who actually increases the ratio of the oligopolistic shareholder's shares, and there is no violation of the rules of evidence against the rules of evidence as otherwise alleged in the ground of appeal. The ground of appeal

2. On the second ground for appeal

Article 38 of the Constitution provides that "All citizens shall have the duty to pay taxes under the conditions as prescribed by Act." Article 59 provides that "types and rates of taxes shall be determined by Act." This principle of no taxation without the law adopts the principle of no taxation without the law. Such principle of no taxation without the law means that the National Assembly, which is a representative body of the people, shall be stipulated by the law enacted by the National Assembly, and the law shall be strictly construed and applied in the enforcement of the law, and the expansion or analogical application of the administrative convenience is not allowed. Therefore, it is against the principle of no taxation without the law to stipulate matters concerning taxation requirements, etc. by administrative legislation such as orders or rules without the delegation of the law, or to provide an interpretation provision of the contents that can be inferred and expanded without the permission of the law (see, e.g., Supreme Court en banc Decision

Article 105 (6) (main sentence) of the former Local Tax Act (amended by Act No. 5406, Aug. 30, 1997; hereinafter the same) provides that “Where a person who first becomes an oligopolistic stockholder due to the establishment, etc. of a corporation acquires a corporation’s stocks from a stockholder, and thereby becomes an oligopolistic stockholder pursuant to subparagraph 2 of Article 22, the oligopolistic stockholder shall be deemed to have acquired the real estate, etc. of the corporation concerned.” On the other hand, Article 78 (1) of the former Local Tax Act (amended by Presidential Decree No. 14061, Dec. 31, 1993; Presidential Decree No. 15489, Oct. 1, 1997) provides that “Where a person who first becomes an oligopolistic stockholder due to the establishment, etc. of a corporation acquires a corporation’s stocks from a stockholder, the oligopolistic stockholder shall be deemed to have acquired the corporation’s stocks on the date of acquisition, and thus, the acquisition tax shall be imposed pursuant to Article 111 (4) of the Act.

However, the extension of taxable objects under the Enforcement Decree of the Local Tax Act is not consistent with the above Local Tax Act and cannot be found in the Local Tax Act. However, Article 66 of the Local Tax Act provides that matters necessary for the enforcement of this Act shall be prescribed by the Presidential Decree. However, this does not only provide that the enforcement order necessary for the enforcement of this Act may be issued, and thus, it cannot be deemed that the above provision comprehensively delegates to the Presidential Decree even the enactment of the laws and regulations on taxation requirements, such as the acquisition of stocks to be considered as the acquisition of taxable objects. Thus, Article 78(1) of the Enforcement Decree of the Local Tax Act is invalid.

Nevertheless, the court below held that the defendant's taxation disposition of this case in accordance with the above provision cannot be deemed unlawful on the ground that the above provision of the Enforcement Decree is not null and void. The court below erred in the misapprehension of legal principles as otherwise alleged in the ground of appeal, and the ground of appeal pointing this out has merit

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is to be delivered with the order of use by Justice Lee Jae-hee Kim Jong-hee's use of a new job for the use of a new job for the use of a new job for the use of a new job