Whether land annexed to an unauthorized house is excluded from idle land subject to land excess profit tax (affirmative)

Article 8 (1) 4 of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) provides that the land on which a building, other than those for factories, is settled, shall be deemed idle land, and the land falling under any of the following items shall be excluded as land annexed to the house under the main sentence, and Article 10 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) provides that "land annexed to the house" shall be used as "land annexed to the house" for residential purpose (referring to the partitioned part so that one household can use separately and separately for apartment houses such as apartment and non-building houses) and its scope shall be limited to the land falling under a specific scope, and Article 8 (1) 3 of the same Act provides that the land annexed to the house shall be excluded from the scope of land annexed to the house without permission under the same subparagraph (c) and Article 10 (1) of the same Act.

Article 8(1)4 of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994); Articles 10 and 11(3) of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Law Firm Dasan, Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

The director of the North Incheon National Tax Office

Seoul High Court Decision 94Gu17286 delivered on June 19, 1996

The part of the lower judgment against the Plaintiff is reversed and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. As to misapprehension of legal principles

According to the reasoning of the judgment below, the court below acknowledged that the land in this case was designated and publicly announced as an urban planning facility zone (park) zone as of July 20, 1970 by the public notice of the Ministry of Construction as of July 20, 1970, and thereafter, the plaintiff acquired the land in this case from the Incheon District Court branch on August 30, 1970, and completed the registration of ownership transfer under the name of the plaintiff on October 30 of the same year. Since the land in this case was originally planned to be a cemetery park site, it cannot be used as a cemetery site on the ground that it is connected to the national highway by the establishment of the national highway. However, the court below's determination that the land in this case was inevitable as a general park, and its use was limited until the development of the park in this case as of July 20, 202, and it cannot be viewed that the land in this case was not designated and publicly announced as a specific park under the former Enforcement Decree No. 14 of the Act because it did not affect the land in this case.

2. As to the violation of the rules of evidence

According to the reasoning of the judgment below, the court below held that the above assertion is without merit on the ground that the 5,773 square meters of the land in this case among the land in this case is located on the 5,073 square meters of a building without permission from 20 years ago, and since the portion of the land occupied by the building without permission should be excluded from the idle land subject to the land excess profit tax, the disposition imposing the land excess profit tax in this case without excluding it is unlawful.

Article 8 (1) 4 of the former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994) provides that the land on which a building is settled, other than those for factories, shall be deemed idle land, and the land falling under any of the following items shall be excluded as land annexed to the house under the main sentence and prescribed by the Presidential Decree as land annexed to the house. Accordingly, Article 10 of the Enforcement Decree of the same Act, which is the Presidential Decree, provides that the land annexed to the house at the time, is "land annexed to the building (referring to the part partitioned to be used independently by one household in the case of multi-family housing such as apartment, apartment, or village house) constructed to be used as a residence," and its scope shall also be limited to the land falling under a specific scope. Article 8 (1) 4 of the same Act, unlike the provisions of subparagraphs 1 through 3 of the same Article, and Article 11 (3) of the Enforcement Decree of the same Act, the land annexed to the house at the time, shall be excluded from the scope of 190.

However, according to Gap evidence Nos. 8-2, 7, 11, 12, 17, 18.25, 28, and 31, it can be known that since August 1984, 100, Do-10 households, including four family members who were non-party 1 the householder, have completed the move-in report with the land of this case as the domicile of the non-party 1. Thus, it may be viewed that they have resided in the unauthorized house constructed on the land of this case.

Therefore, the court below should further examine whether the above 10 generation residents actually reside in the housing on the land of this case, etc., but the court below, without doing so, judged that the above evidence alone is insufficient to recognize the existence of an unauthorized house. Thus, the court below erred by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. It is obvious that the court below erred in violation of the rules of evidence by failing to exhaust all necessary deliberations and affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. Therefore, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)