Whether Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act violates the substantial principle of no taxation without law or fair taxation under the Constitution, or infringes on property rights and freedom to choose occupation (negative), and whether the above provision exceeds the delegation scope of the mother law (negative)

Article 11 of the former Gross Real Estate Tax Act (Amended by Act No. 10221, Mar. 31, 2010); Article 112(2)2 of the former Local Tax Act (Amended by Act No. 8864, Feb. 29, 2008); Article 182(1)(see current Article 106(1)); Article 188(1)1(c) of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act (see current Article 111(1)1(c)); Article 131-2(3) of the former Enforcement Decree of the Local Tax Act (Amended by Presidential Decree No. 19817, Dec. 30, 2006; Presidential Decree No. 1013(3) of the Installation and Utilization of Sports Facilities Act (see current Article 101(3)); Article 131(1)1(3) of the Installation and Utilization of Sports Facilities Act

Japan Development Co., Ltd. (Law Firm New Light et al., Counsel for the plaintiff-appellant)

port of origin

Seoul High Court Decision 2010Nu32930 decided April 13, 2011

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

The grounds of appeal are examined.

Article 11 of the former Gross Real Estate Tax Act (amended by Act No. 1021, Mar. 31, 2010) provides that comprehensive real estate holding tax on land shall be imposed separately from general aggregate taxation and special aggregate taxation under Article 182(1) of the Local Tax Act. Article 182(1) of the former Local Tax Act (amended by Act No. 8864, Feb. 29, 2008; hereinafter the same shall apply) provides that property tax on land shall be subject to general aggregate taxation, separate taxation or separate taxation under Article 182(1) of the former Local Tax Act (excluding land subject to separate aggregate taxation or separate taxation among land owned by a person liable to pay taxes as of the tax base date, which is prescribed by Presidential Decree with considerable reasons for separate taxation, such land shall be subject to separate taxation under Article 182(1)3 of the former Enforcement Decree of the Local Tax Act (amended by Act No. 1020, Mar. 31, 201; hereinafter the same shall apply).

According to Article 13(1) of the Installation and Utilization of Sports Facilities Act and Article 12 of the Enforcement Decree of the same Act, in order to obtain approval for a golf club business plan or approval for a change in the relevant business plan, the ratio of securing the original preservation area of forests within the golf club business plan shall not be less than 20%. It can be seen as setting the limitation of changing the form and quality of forests. Generally, forest land preserved within the golf course is naturally located outside the boundaries of hole and hole, thereby preventing safety accidents, and plays an important role in the landscape and landscape of golf courses. Thus, it is reasonable to view that it constitutes a golf course as a combination with other land such as golf courses in the golf course, etc., and it is difficult to view that it is difficult to view the whole land for members to be subject to separate taxation and comprehensive real estate holding tax without consideration because it is difficult to view it as a legislative purpose of Article 188(1)1(c) and Article 112(2)2 of the Enforcement Decree of the Local Tax Act or that it is difficult to view that the property right or comprehensive real estate holding tax without consideration within the statutory scope of the same.

In the same purport, the court below is just in holding that the defendant's disposition of this case is legitimate, under the premise that the enforcement decree of this case is not null and void. There is no error in the misapprehension of legal principles as to the principles of property rights protection and the limitation of delegated legislation under the Constitution, as otherwise alleged in the ground of appeal.

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 Min Il-young (Presiding Justice)