In a case where a disposition of imposition and seizure of excess ownership charges becomes final and conclusive before the Constitutional Court made a decision of unconstitutionality on the former Act on the Ownership of Housing Sites, whether the above decision of unconstitutionality constitutes grounds for cancellation of attachment under Article 53 (1) 1 of the National Tax Collection Act (negative)

In a case where the disposition of imposition and seizure of excess ownership charges of the housing site has become final and conclusive before the Constitutional Court rendered a decision of unconstitutionality as to the former Act on September 19, 198 (repealed by Act No. 5571 of September 19, 198), the above disposition of unconstitutionality does not affect the validity of the above disposition of unconstitutionality. Thus, even if Article 30 of the same Act, which is the basis of the above disposition of seizure, becomes null and void by the above decision of unconstitutionality, it shall not affect the validity of the above disposition of unconstitutionality. Therefore, it is reasonable to view that the disposition authority can proceed with the procedure of public sale, liquidation, etc. based on the above final and conclusive seizure disposition, and even if it is not so, the above seizure can not be deemed as a ground for cancellation, and therefore, it cannot be deemed that the above disposition of unconstitutionality is harsh to the delinquent person by maintaining the above seizure as it is, and thus, it cannot be deemed that the above disposition of unconstitutionality constitutes a ground for cancellation under Article 53(1).

Articles 19 and 30 of the former Act on the Ownership of Housing Sites (repealed by Act No. 5571 of September 19, 1998), Article 53 (1) 1 of the National Tax Collection Act

Constitutional Court Decision 94HunBa37 delivered on April 29, 1999 and 66 cases (HunGong34, 337)

[Defendant-Appellee]

The head of Eunpyeong-gu Seoul Metropolitan Government

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's disposition rejecting the release of attachment against the plaintiff on May 24, 1999 is revoked.

1. Details of the disposition;

The following facts may be acknowledged in full view of the whole purport of the pleadings in each of Gap's evidence 1, 2, 3, 5, 6, and Gap's evidence 4-1 to 4:

A. As to the portion exceeding 660 square meters out of seven parcels of land, such as 1250 square meters and 317.3 square meters, which are owned by the Plaintiff and his wife Kim-ok, the Defendant, under the former Act (amended by Act No. 5571, Sep. 1998); on October 2, 1992, from June 2, 1992 to June 1, 1993, issued a notice of imposition of charges for excess of the housing site (hereinafter “charges”) from June 1, 1993 to June 1, 1993; on October 2, 1993 to June 31, 1994, the Plaintiff was not subject to imposition of charges from June 1, 1993 to June 1, 1994; on June 31, 1993 to June 1, 195, each of the charges imposed on the Plaintiff.

B. As part of the procedure for the disposition on default on each of the above charges under Article 30 of the same Act and Article 24 of the National Tax Collection Act, on February 17, 1994, the Defendant issued each attachment disposition on March 21, 1997 with respect to the land of the same 1250-7 square meters and 1250-9 square meters owned by the Plaintiff on February 17, 1994 as part of the procedure for the disposition on default on each of the above charges under Article 30 of the same Act and Article 24 of the National Tax Collection Act, and each of the above attachment disposition became final and conclusive on March 21, 1997 on the land of the same 1250 square meters and 274.2 square meters.

C. After the Constitutional Court's decision on April 29, 199 as to 94Hun-Ba37, and 6 cases, the Constitutional Court's decision on the imposition of each charge and seizure pursuant to the proviso of Article 45 of the Constitutional Court Act (No. 4174, Dec. 30, 1989; No. 4796, Dec. 22, 1994; Act No. 5108, Dec. 29, 1995; Act No. 5109, Dec. 29, 1995; Act No. 5109, Aug. 30, 1997; Act No. 5410, Dec. 30, 1997); the plaintiff, at the time of such decision, applied for the cancellation of the seizure of the above land for the reasons under Article 30 of the National Tax Collection Act, which became final and conclusive, and thus, the cancellation of the seizure of the above land becomes unnecessary.

2. Determination on this safety defense

(1) As to the plaintiff's lawsuit seeking cancellation of the above disposition, the defendant did not have the right to file an application for cancellation of attachment with the plaintiff since the grounds for unconstitutionality decision of the above Act does not fall under the grounds for cancellation of attachment under Article 53 (1) 1 of the National Tax Collection Act. Therefore, the plaintiff's disposition rejecting the plaintiff's request for cancellation of attachment due to the above unconstitutionality decision cannot be deemed as a disposition which is the object of administrative litigation because it is merely a notification act and thus,

(2) However, since Article 30 of the Act on the Ownership of Housing Site, which is the basis of each of the above dispositions of seizure, becomes null and void by the above unconstitutional decision, the plaintiff filed an application for the cancellation of attachment, claiming that each of the above lands constitutes grounds for cancellation of attachment under Article 53 (1) 1 of the National Tax Collection Act, and thus, the plaintiff's application for the cancellation of attachment is legitimate. Since the existence of grounds for cancellation of the defendant's claim can be determined within this area, the disposition of refusal of the above disposition constitutes a disposition subject to administrative litigation that establishes the rights and obligations of the people, not a mere notification act. Accordingly, the defendant's defense is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

As a decision of unconstitutionality on the entire Act on the Ownership of Housing Site, Article 30 of the same Act, which is the basis provision for the attachment disposition of this case, becomes null and void, the plaintiff could no longer proceed with the procedure for disposition on default, such as public sale and liquidation of each of the above attached lands, and this constitutes a ground for cancellation of attachment under Article 53 (1) 1 of the National Tax Collection Act, but the plaintiff's refusal of the above request for cancellation of attachment on the ground that the above disposition did not constitute a ground for cancellation of attachment is illegal.

B. Relevant statutes

Article 30 of the Act on the Ownership of Housing Sites provides that if a person liable for payment of charges fails to pay the charges and additional dues in full by the designated time limit after receiving a demand notice, the Minister of Construction and Transportation may collect them in accordance with the example of disposition on default of national taxes. Article 53(1) of the National Tax Collection Act provides that in cases falling under any of the following subparagraphs, the head of a tax office shall release the seizure in accordance with the example of disposition on default of national taxes.

(c) Markets:

However, as long as the imposition and seizure disposition of each of the above charges have become final and conclusive before the Constitutional Court made a decision of unconstitutionality as to the above Act on Ownership of Housing Site, it does not affect the validity of the above seizure disposition, which became final and conclusive and conclusive, even if Article 30 of the above Act, which is the basis of each of the above seizure disposition, becomes null and void by the above unconstitutionality decision, it shall not affect any effect on the validity of each of the above seizure disposition, and even if the defendant can proceed with the procedure of realization of public auction, liquidation, etc. based on each of the above seizure dispositions, which became final and conclusive, and even if not, the above seizure has the effect of interruption of prescription and prohibition of disposition, so it cannot be deemed that the above seizure has a ground for cancellation. Thus, the above decision of unconstitutionality cannot be deemed as being harsh to the plaintiff who failed to pay each of the above charges by maintaining the above seizure. Therefore, the plaintiff's above assertion cannot be viewed as a ground for cancellation of attachment under Article 53 (1) 1 of the National Tax Collection Act.

4. Conclusion

Therefore, the disposition of this case is lawful, so the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-il (Presiding Judge)