[1] Whether the amended law provides a more unfavorable legal effect in relation to the people's property rights because it is subject to the existing facts or legal relations, whether it constitutes a violation of property rights by retroactive legislation, and whether it violates the principle of trust protection as a requirement for limiting the application of the amended law and its requirements

[2] The case holding that the application of the above provision shall not be limited on the ground that even if the former Act prior to the amendment continues to exist in relation to the classification of the main business that the party runs, and thus, the housing construction and sales business continues to be classified as a construction business in accordance with the interpretation thereof, such trust does not constitute a more protection-value trust by comparing and balancing with the public interest demand as to the application of Article 2 (3) of the Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001)

[3] In a case where Article 2(3) of the Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001); newly established Article 2(3) of the Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001; hereinafter “the Restriction of Special Taxation Act”) did not provide any transitional provision for the changed company to the category of business that is not subject to reduction or exemption, whether the said provision violates

[1] Even in cases where the relevant statute is amended, unless otherwise specified in the transitional provision, an administrative disposition shall be based on the amended law that enters into force at the time of the disposition and its set criteria. In principle, even in cases where the amended law provides a legal effect more unfavorable than the previous one in relation to the property rights of the people with regard to the existing facts or legal relations subject to the application of the amended law, if such facts or legal relations are not already completed or terminated before the enforcement of the amended law, it shall not be deemed an infringement of property rights by retroactive legislation prohibited under the Constitution. With regard to the application of such amended law, there is room for its application to protect the public trust in cases where the public trust in the continuation of the statute prior to the amendment is deemed more worthy of protection than the demand of the public interest in the application of the amended law. On the other hand, in order to determine the violation of the principle of trust protection, the purpose of public interest realized through the amendment should be compared and balanced comprehensively on the one hand, on the other hand, on the basis of the values of the infringed interest.

[2] The case holding that the application of the above provision shall not be limited on the grounds that the trust does not constitute a more protected trust by comparing and balancing with the public interest demand for the application of Article 2 (3) of the Restriction of Special Taxation Act as amended by Act No. 6538 of December 29, 2001, since the former Restriction of Special Taxation Act (amended by Act No. 6538 of December 29, 2001) continued to exist in relation to the classification of the main business that the party's own business and trusted that the housing construction and sales business will continue to be classified as a construction business in accordance with the interpretation of the provision.

[3] According to Articles 1 and 2(1) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001); however, prior to the enforcement of the amended Act, it does not deprive the company of benefits retroactively from the part of the amount of corporate tax reduced or exempted. If so, while implementing the temporary corporate tax reduction or exemption system, which is a policy, provisional, and temporary tax-related measure, newly establishing Article 2(3) of the same Act and newly establishing Article 2(3) of the same Act, there is no transitional provision against the changed company to the category of business that is not subject to reduction or exemption of corporate tax, it does not violate the principle of equality under the Constitution, the guarantee of property rights, the principle of excessive prohibition, and the principle of trust protection.

[1] Article 1 of the Administrative Litigation Act / [2] Article 2 (3) of the former Restriction of Special Taxation Act (amended by Act No. 8387 of April 27, 2007) / [3] Article 2 (1) and (3) of the former Restriction of Special Taxation Act (amended by Act No. 8387 of April 27, 2007), Article 1 of the Addenda, Articles 11 and 23 of the Constitution

[1] Supreme Court Decision 94Nu10887 delivered on Nov. 21, 1995 (Gong1996Sang, 82) Supreme Court Decision 97Nu13818 delivered on Mar. 10, 200 (Gong2000Sang, 973) Supreme Court en banc Decision 2003Du1289 delivered on Nov. 16, 2006 (Gong2006Ha, 2085) Supreme Court Decision 2008Du8918 Delivered on Apr. 23, 2009 (Gong2009Sang, 763) / [3] Constitutional Court en banc Decision 93Hun-Ba18, 31 delivered on Mar. 23, 1995 (Hun-Ba9, 217); Constitutional Court en banc Decision 2008Hun-Ba2938 delivered on Nov. 25, 2006)

Plaintiff, Ltd.

Samsung Head of Samsung Tax Office

Seoul High Court Decision 2007Nu29934 decided May 28, 2008

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

We examine the grounds of appeal.

1. Even in cases where the relevant statute is amended, unless otherwise specified in the transitional provision, an administrative disposition shall be based on the amended law that enters into force at the time of the disposition and the standards set thereon. Even in cases where the amended law provides a legal effect more unfavorable than the previous one with respect to the property rights of the people, such fact or legal relation is not already completed or terminated before the amended law enters into force, it shall not be deemed an infringement of property rights by retroactive legislation prohibited under the Constitution. With regard to the application of such amended law, there is room to place restrictions on its application to protect the public trust in cases where the public trust in the continuation of the statute prior to the amendment is deemed more worthy of protection than the public interest demand for the application of the amended law (see, e.g., Supreme Court Decisions 94Nu1087, Nov. 21, 1995; 97Nu13818, Mar. 10, 200).

2. Article 2(3) of the Restriction of Special Taxation Act (amended by Act No. 6538, Dec. 29, 2001; hereinafter “former Restriction of Special Taxation Act”) provides that “The classification of the types of business to be used in the former Restriction of Special Taxation Act shall be based on the Korean Standard Industrial Classification publicly notified by the Commissioner of the Statistics Korea pursuant to Article 17 of the Statistics Act, except as otherwise provided in the former Restriction of Special Taxation Act.” According to Articles 1 and 2(1) of the Addenda of the same Act, the amended provision on corporate tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related tax-related

3. However, prior to the enactment of Article 2(3) of the former Restriction of Special Taxation Act, there may be disputes in interpretation as to whether a business operated by a certain company falls under the category of business subject to tax reduction or exemption because there is no express provision on classification of business type. However, prior to the enactment of Article 2(3) of the former Restriction of Special Taxation Act, it seems that the above provision was newly established to clarify the scope of business type in order to resolve room for dispute between the Defendant and the above provision’s interpretation. In this regard, it is extremely doubtful whether the former Act prior to the enactment of Article 7(1) of the former Restriction of Special Taxation Act does not stipulate the expectation of tax reduction or exemption pursuant to Article 7(2) of the former Restriction of Special Taxation Act as its main business. Moreover, it is difficult to view that the former Special Provision on Tax Reduction or Exemption of Special Taxation Act does not apply to a small and medium enterprise whose main business type is subject to tax reduction or exemption prior to the enactment of Article 2 of the former Restriction of Special Taxation Act (see Article 13 of the former Special Provision on Tax Reduction or Exemption of Special Taxation Act).

4. The lower court determined that the Plaintiff’s main business under Articles 2(3) and 4(1) of the former Restriction of Special Taxation Act should be proved to be “construction business” under the Korea Standard Industrial Classification; however, the evidence in its holding alone alone is insufficient. The lower court’s aforementioned determination and finding of facts are justifiable in line with the above legal principles, and there is no violation of the rules of evidence, such as misunderstanding of legal principles, omission of judgment, and violation of the rules of evidence, as otherwise alleged in the grounds of appeal.

5. 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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)