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

[2] In a case where a decision on the facility for a sports ground was made after land acquisition, whether the actual operation of a sports ground is limited by law (affirmative)

[1] Since the Constitutional Court's decision of inconsistency with the Constitution of the Republic of Korea on July 29, 1994 was amended in order to remove or improve unconstitutional elements pointed out in the Constitutional Court's decision of inconsistency with the Constitution of the Republic of Korea on July 29, 1994, Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act, its Enforcement Decree, enforcement rules, etc., all of the amended provisions shall apply to the pertinent case, etc., unless it is applied disadvantageous to taxpayers. Thus, Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act of December 31, 1994, which stipulates inevitable reasons and period not considered idle land

[2] If it is impossible to divert the land as a sports facility under the Urban Planning Act after the acquisition of the land without changing the determination of the urban planning facility because its use is limited, even if the person who acquired the land was using the land as the land for the purpose of business management of the sports ground on the corporate register and used it as the land for the sports facilities for the business, which is its unique business, such restriction shall be deemed to be limited to the land under Article 23 subparagraph 1 of the Enforcement Decree

[1] Article 107(1) of the Constitution, Article 47(2) of the Constitutional Court Act, Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Gains Tax Act / [2] Article 9(3)1, Article 8(1)8, and (3) of the Land Excess Gains Tax Act, Article 15(1)2(b), and Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Gains Tax Act, Article 11(6)1 of the Enforcement Rule of the Land Excess Gains Tax Act

[1] Supreme Court Decision 92Nu49, 52 delivered on July 29, 1994 (Gong12792No. 36 delivered on July 26, 1995) Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963), Supreme Court Decision 92Nu18122 delivered on November 10, 1995 (Gong1995Ha, 3945), Supreme Court Decision 93Nu1648 delivered on November 10, 1995 (Gong195Ha, 3947), Supreme Court Decision 93Nu17911 delivered on January 26, 1996 (Gong196Sang, 814 delivered on September 196, 196), Supreme Court Decision 93Nu294639 delivered on September 36, 196 (Gong19649).

Jin Industrial Co., Ltd. (Attorney Lee Jae-hee, Counsel for the defendant-appellant)

Attorney Yoon Young-young (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

Seoul High Court Decision 92Gu26927 delivered on April 28, 1993

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

We examine the grounds of appeal.

Inasmuch as the Constitutional Court's decision of inconsistency with the Constitution on July 29, 1994 was amended in order to remove or improve unconstitutional elements pointed out in the Constitutional Court's decision of inconsistency with the Constitution on July 29, 1994, the amended provisions shall apply to the case in question, etc. Therefore, Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act, which stipulates the inevitable reasons and the period of time, is also amended by Presidential Decree No. 14470 of December 31, 1994, the above amended provisions of the Enforcement Decree shall also apply to this case.

According to the reasoning of the judgment below, the court below recognized the fact that the plaintiff acquired the real estate in this case and the urban planning facility decision was made as a playground under the Urban Planning Act, but held that the plaintiff's use of the real estate as a sports facility cannot be deemed as a legal restriction, as long as the plaintiff was using it as a land for the sports facility for the sports facility in the corporate register, since it had been for the purpose of the sports

However, if the use of the instant real estate is restricted as a sports facility under the Urban Planning Act after the acquisition of the instant real estate, and it is impossible to convert the instant real estate without any change in the determination of urban planning facilities, such restriction shall be deemed as the land whose use is limited pursuant to

Nevertheless, the judgment of the court below that the real estate of this case is not excluded from idle land, etc. is erroneous in the misapprehension of legal principles as to land, the use of which is limited by law, and therefore, there is a ground to

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)