[1] Whether Article 75 of the Constitution prohibiting the comprehensive delegation of Article 8-2 (6) of the former Inheritance Tax Act violates Article 75 of the Constitution (negative)

[2] Whether Article 3-2 (1) 1 and 2 of the former Enforcement Decree of the Inheritance Tax Act is an exemplary standard under the proviso of Article 8-2 (1) of the former Inheritance Tax Act (negative)

[3] Whether Article 3-2 (13) 1 and 2 of the former Enforcement Decree of the Inheritance Tax Act violates the principle of no taxation without law or equality under the Constitution (negative)

[4] In case where one of the co-inheritors who established a public-service corporation by contributing inherited property becomes a director of the corporation, whether the property contributed cannot be included in the taxable value of inherited property (affirmative)

[1] Article 8-2 (6) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) provides that "any property to be contributed to a business that is a public-service corporation pursuant to paragraph (1) 1 shall not be included in the taxable value of inherited property according to the method prescribed by the Presidential Decree." This is excluded from the taxable value of inherited property where all inherited property is donated to a public-service business by an ancestor as an exception to Article 2 (1) of the same Act, which is that the taxable value of inherited property shall be included in the taxable value of inherited property. However, the case where the ancestor contributed to the public-service business by means of the contribution of the public-service business, however, it shall be excluded from the taxable value of inherited property, and the specific contents shall be stipulated in the Enforcement Decree. Thus, it does not violate Article 75 of the Constitution

[2] Article 3-2 (1) 1 and 2 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993) and Article 8-2 (1) proviso of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) provide for an exceptional standard of "where part of the profits from inherited property belongs to the heir, the decedent, or his/her relative," or Article 3-2 (1) 1 and 2 of the former Enforcement Decree provides that Article 8-2 (1) proviso of the former Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993), and Article 8-2 (1) proviso of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 199) shall not apply mutatis mutandis to cases where an heir contributes inherited property to public works through the proviso of Article 8-2 (6).

[3] Article 8-2 (1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) applies to cases where an ancestor contributes to a public-service project. Article 8-2 (6) of the same Act applies to cases where an heir contributes to a public-service project. Unlike the former case, there are many heirs who can use the property as a means of tax evasion, such as inheritance tax evasion and division. Thus, in both cases, there are reasonable grounds for the exception to the non-taxation of the taxable value of inherited property. Thus, Article 3-2 (13) 1 and 2 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993) provides that "the heir does not have the authority to appoint a director's property as an element not included in the taxable value of inherited property when contributing to a public-service project upon delegation of Article 8-2 (6) of the same Act."

[4] Even if co-inheritors established a public-service corporation and contributed inherited property, if one of the co-inheritors takes office as the president of the corporation, and does not meet the requirements under Article 3-2 (13) 2 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993), all of the contributed property cannot be included in the taxable value of inherited property, and the part of the heir’s share in inheritance, other than the heir who takes office as director, among the contributed property, is not included in the taxable value of inherited property.

[1] Article 75 of the Constitution, Article 8-2 subparagraph 6 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4662 of Dec. 31, 1993) / [2] Article 8-2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4662 of Dec. 31, 1993) (see Article 16 of the current Inheritance Tax and Gift Tax Act), Article 3-2 (1) of the former Enforcement Decree of Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 14082 of Dec. 31, 1993) (see Article 13 of the current Inheritance Tax and Gift Tax Act) / [3] Article 59 and 11 of the Constitution of the Republic of Korea, Article 8-2 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4662 of Dec. 31, 193), Article 136 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 1319 of Dec. 213, 19, 19)

[2] Supreme Court Decision 94Nu5472 delivered on September 27, 1994 (Gong1994Ha, 2890)

Ansan-si and five others (Attorney Jeon Jong-gu, Counsel for the plaintiff-appellant)

The Head of the Maternization Tax Office

Seoul High Court Decision 95Gu31968 delivered on June 21, 1996

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. On the first ground for appeal

Article 8-2 (6) of the former Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990 and amended by Act No. 4662 of Dec. 31, 1993; hereinafter "the Act") provides that "any property contributed to a business that is a public-service corporation pursuant to paragraph (1) 1 shall not be included in the taxable value of inherited property according to the method prescribed by Presidential Decree." This is an exception to Article 2 (1) of the Act that all inherited property should be included in the taxable value of inherited property and contributed to a public-service corporation pursuant to paragraph (1) 1 of the same Article, which is excluded from the taxable value of inherited property: Provided, That this is excluded from the taxable value of inherited property where an ancestor has contributed to the property of the public-service corporation by way of the contribution of public-service business, which is required to meet certain requirements in order to prevent the illegal de facto erosion of the part while prescribing the specific contents in the Enforcement Decree. Therefore, it does not violate Article 7

Therefore, the judgment of the court below to the same purport is correct and there is no violation of law as the theory of lawsuit.

2. On the second and third grounds for appeal

The main sentence of Article 8-2 (1) and subparagraph 1 of the Act list property contributed to public works operated under the conditions as prescribed by the Presidential Decree in cases where the taxable value of inherited property is excluded. Article 3-2 (1) 1 and 2 of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 14082, Dec. 31, 1993; hereinafter the same shall apply) define public works operated under the conditions as prescribed by the Presidential Decree under Article 8-2 (1) 1 of the Act except where a person with a special relationship with the pertinent public works exceeds 1/3 of the current directors of the public-service corporation that provides public services or has the authority to determine the appointment of directors or other important matters concerning the operation of the business. The proviso of Article 8-2 (1) of the Act provides that all or part of the profits accruing from the property contributed to the public-service corporation through post management shall not be deemed as property contributed to the public-service corporation, and Article 3-2 (1) 1 and the proviso of Article 8-2 of the Enforcement Decree provides that the same shall not apply mutatis mutandis.

In addition, Article 8-2 (1) of the Act applies to cases where an ancestor contributes to a public project. Article 8-2 (6) of the Act applies to cases where an heir contributes to a public project. Unlike the former case, there are many successors who can use it as a means of evading inheritance tax by means of consultation, division, etc., unlike the latter case. Therefore, in both cases, there are reasonable grounds for different exceptions to the exclusion of the taxable value of inherited property. Therefore, Article 3-2 (13) 1 and 2 of the Enforcement Decree of the Act is not included in the taxable value of inherited property when an heir contributes to a public project upon delegation of Article 8-2 (6) of the Act, which is not included in the taxable value of inherited property (in cases where the heir is two or more successors, the heir shall contribute the property within the deadline for reporting under Article 20 (1) of the Act, and it is not in violation of the principle of no taxation without the law or the principle of no taxation without the law.

Therefore, we cannot accept the conclusion that the judgment below to the same purport is justified, and it is inconsistent with the provisions of Article 3-2 (13) 1 and 2 of the Enforcement Decree against the case where the heir contributes to a public-service project and the decedent contributes to a public-service project without any reasonable reason, the invalidation provision that expands and strengthens the requirements for non-taxation in the taxable value of inherited property than the provisions of the mother law, or the violation of the provisions concerning the number of directors in special relations prescribed in Article 5 (5) of the Act on the Establishment and Operation of Public-Service Corporations (amended by Act No. 2814 of Dec. 31, 1975 and amended by Act No. 4932 of Jan. 5, 195)

3. On the fourth ground for appeal

As the court below has duly decided, even if the plaintiffs established and contributed to the Foundation of Park Jong-chul, a public-service corporation that provides public service of the inherited property of this case, if only the plaintiff Cho Jong-sung did not meet the requirements prescribed in Article 3-2 (13) 2 of the Enforcement Decree because it takes office as the president of the above Scholarship Foundation, the whole contributed property cannot be included in the taxable value of the inherited property, and the part corresponding to the shares of the remaining plaintiffs' inheritance except the plaintiff Jeon-nam who takes office as the director among the contributed property is not included in the taxable value of the inheritance

In the end, the decision of the court below to the same purport is justified and there is no error of law by misunderstanding the legal principles as to Article 3-2 (13) of the Enforcement Decree of the same Act. There is no ground for the

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

Justices Kim Jong-sik (Presiding Justice)