[1] Whether the amended provisions, etc. pursuant to the Constitutional Court's ruling of inconsistency with the Constitution as to the former Land Excess Profit Tax Act are retroactively applied (affirmative)

[2] The criteria for determining the time of restriction where the land under the Land Excess Profits Tax Act was inherited

[1] In accordance with the Constitutional Court's ruling of inconsistency with the Constitution on Land Excess Profit Tax Act (the Constitutional Court Order 49,52 delivered on July 29, 1994), each of the provisions of the law, the Enforcement Decree, and the Enforcement Rule amended to remove or improve the unconstitutional elements pointed out in the decision, each of the above provisions shall apply not only to the above cases, but also to cases which are still pending in the court.

[2] If the land acquired on September 28, 1968 is designated as a school site under the urban planning on February 3, 1982, and if it was inherited on February 19, 1986, the land concerned is the land which is prohibited or restricted from use under the provisions of the law under Article 23 subparagraph 1 of the amended Enforcement Decree of the Land Excess Profit Tax Act (the Presidential Decree No. 14470 of December 31, 1994). In applying the provisions of the above Enforcement Decree, the acquisition date of the land in question shall be deemed to be September 28, 1968 when the predecessor acquired the land under the proviso of Article 25 (1) 2 of the Enforcement Decree of the same Act as of September 28, 1968. Thus, since the land in question is prohibited or restricted by the provisions of the law after its acquisition, it is the land excluded from the idle land pursuant to Article 23 subparagraph 1 of the Enforcement Decree of the same Act.

[1] Article 107 (1) of the Constitution, Article 47 (2) of the Constitutional Court Act / [2] Article 8 (5) of the Land Excess Gains Tax Act, Article 23 (1) 1 of the Enforcement Decree of the Land Excess Gains Tax Act, and Article 25 (1) 2 of the Enforcement Decree of the Land Excess Gains Tax Act

[1] [2] Supreme Court Decision 92Nu17556 delivered on April 23, 1996 (1) / [1] Constitutional Court Order 92Hun-Ba49 and 52 delivered on July 29, 1994 (No. 12792No. 36 delivered on July 28, 1995) Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963), Supreme Court Decision 92Nu18122 delivered on November 10, 1995 (Gong195Ha, 395Ha, 3945), Supreme Court Decision 93Nu1648 delivered on November 10, 1995 (Gong195Ha, 3947) 196Nu1963196 delivered on September 16, 194) 196.

Plaintiff (Attorney Lee Jong-soo, Counsel for plaintiff-appellant)

Head of the Do Tax Office

Seoul High Court Decision 92Gu21915 delivered on November 24, 1992

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

The grounds of appeal by the defendant litigant are examined.

In accordance with the Constitutional Court's ruling of inconsistency with the Constitution on Land Excess Profit Tax Act (the Constitutional Court Order 49,52 delivered on July 29, 1994), each provision of all the laws, the enforcement decree and the enforcement rules amended to remove or improve unconstitutional elements pointed out in the decision shall be deemed to apply not only to the pertinent case, but also to cases which are still pending in the court (see, e.g., Supreme Court Decision 93Nu17911 delivered on January 26, 1996).

According to the court below's determination, the land in this case was acquired by the deceased non-party on September 28, 1968 by the plaintiff's mother, and was designated as a school site under urban planning on February 3, 1982, and the plaintiff succeeded to it on February 19, 1986, and if so, the land in this case is prohibited or restricted from use pursuant to the law under subparagraph 1 of Article 23 of the amended Enforcement Decree of the Land Excess Profit Tax Act (the Presidential Decree No. 14470 of December 31, 1994, the same applies hereinafter). In applying the above provision of the Enforcement Decree, the acquisition date of the land in this case shall be deemed to be the land acquired by the deceased non-party, who is the deceased, under the proviso of Article 25 (1) 2 of the Enforcement Decree of the same Act newly established at the time of the above amendment, and the land in this case shall be deemed to be prohibited by the law or excluded from the idle land under Article 23 (1) of the Enforcement Decree.

On the premise that the Enforcement Decree of the former Land Excess Profit Tax Act is applied, the court below erred in holding that the land of this case is a land excluded from idle land. Thus, the defendant's appeal is without merit.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)