[1] The meaning and standard of determining "a specific scope" under Article 75 of the Constitution, which prescribes the limitation of delegation to the Presidential Decree by law

[2] Whether the provisions of Article 234-15 (2) 5 of the Local Tax Act, which provides that "land exceeding the basic area as prescribed by the Presidential Decree, which is a land subject to separate taxation of aggregate land tax, is unconstitutional (negative)

[1] If the National Assembly, a representative organ of the people, provides for taxation requirements to guarantee the people's property rights (the legal principle of taxation requirements), and if it delegates Articles 38 and 59 of the Constitution that stipulate the so-called principle of no taxation without law to ensure the legal stability and predictability of the people's lives by clearly stipulating the taxation requirements, it shall stipulate in advance the basic matters of the contents and scope to be stipulated by the Presidential Decree in order to prevent arbitrary interpretation and enforcement of the administrative authority and achieve the principles of parliamentary legislation and the rule of law in accordance with Article 75 of the Constitution. In light of the legislative intent of Article 75 of the Constitution, "the specific scope of the scope of delegation to the Presidential Decree in accordance with the Presidential Decree in accordance with Article 75 of the Constitution" shall be defined as "the basic matters of the contents and scope to be stipulated by the Presidential Decree in the law, including Presidential Decree, should be defined in a concrete and clear manner as possible, and the existence of predictability must not be determined with only the specific provisions in question, but should be reviewed systematically and systematically in accordance with the specific nature of each law.

[2] Article 234-15 (2) 5 of the Local Tax Act provides that "land subject to separate tax base is land attached to a house under the provisions of Article 188 (1) 2 (1) and in excess of the basic area stipulated by the Presidential Decree." The important elements of the land subject to separate taxation are specific and individually limited to "area". It is delegated to the Presidential Decree specifically taking into account the legislative purpose of Article 234-15 (2) 5 of the Local Tax Act and the delegated cultivation. Thus, even if the scope and standard of "area", which is the delegated matter, are not expressly specified, the scope and limit of inherent delegation under the above provision can be sufficiently recognized. Meanwhile, since the legislative purpose of the above Article 188-15 (2) 2 (1) is to regulate excessive ownership of land in large cities within the scope of the local tax law and promote social and economic stability in the land price of large cities within the scope of Article 188-15 (2) 5 of the Local Tax Act, it cannot be determined within the scope of the above Article 2 (3).

[1] Articles 38, 59, and 75 of the Constitution / [2] Articles 188(1)2(1) and 234-15(2)5 of the Local Tax Act, Article 194-15(3)3 of the Enforcement Decree of the Local Tax Act, Articles 59 and 75 of the Constitution

[1] Constitutional Court Order 95Hun-Ba27 delivered on February 20, 1997 (Hun-Ba20, 254), 96Hun-Ba92 delivered on October 30, 1997, 97Hun-Ba25 and 32 delivered on July 16, 1998 (Hun-Ba24, 716), 96Hun-Ba52, 97Hun-Ba40 delivered on July 16, 1998, 96Hun-Ba52, 53, 86, 87, 98Hun-Ba23 delivered on July 16, 1998 (Hun-Ba29, 638)

Oi-soon (Attorney Yi-do et al., Counsel for defendant-appellant)

The head of Seongbuk-gu Seoul Metropolitan Government (Attorney Lee Jae-chul)

Seoul High Court Decision 2001Nu6342 delivered on April 11, 2002

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The disposition of imposition of KRW 1,152,820 (total sum of KRW 222,870 + separate taxation + KRW 929,950) of urban planning tax, KRW 147,530 of education tax, and KRW 1,530,560 of total amount of KRW 1,530,910 of education tax, shall be revoked on October 7, 1999.

1. Details of the disposition;

On October 7, 1999, the Defendant: (a) the Plaintiff owned a 15th to 27th to 60 square meters (hereinafter referred to as “instant land”); (b) the Plaintiff and his mother adjacent to the Seongbuk-dong, Seongbuk-gu, Seongbuk-gu, Seongbuk-gu, Seoul; and (c) the Plaintiff owned a 15th to 202 to 468 square meters (hereinafter referred to as “instant land”); and (b) the land attached to the instant land with the 15th to 15th to 202 to 468 square meters (hereinafter referred to as “the instant land”); and (b) the land attached to the 1,068.56 square meters of the instant land and the 288.56 square meters of the land; (c) the Plaintiff’s share of the Plaintiff-owned land is the 1,068 square meters of the total land tax base; (d) the Plaintiff’s 175 square meters of urban planning tax is the 15th to 19999 square meters of the instant land tax base; (hereinafter referred to 201, 2030529.20.20.25

[Identification Evidence] Evidence Nos. 1 through 8, Eul evidence No. 1, Eul evidence No. 2-1, 2, Eul evidence No. 3, Eul evidence No. 4-1, 2, and Eul evidence No. 5

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the part of the separate taxation of the aggregate land tax and the education tax corresponding thereto among the dispositions in this case are unconstitutional for the following reasons. The plaintiff asserts that the education tax of Article 234-15 (2) 5 of the Local Tax Act (hereinafter referred to as the "legal provision in this case") should be revoked.

(A) Violation of the limitation of delegated legislation under the no taxation without law

Article 18 (1) 2 (1) of the Act provides that "land subject to separate taxation is land exceeding the basic area prescribed by Presidential Decree, which is land annexed to a high-class house under the provisions of Article 188 (1) 2 (1)" (hereinafter referred to as "land subject to separate taxation"). Although the basic area, which is an important factor to determine land subject to separate taxation, is delegated to the Presidential Decree, it does not contain any provision or data that can be predicted by the citizens of the contents of "basic area" under the provisions of the Act of this case, and there is no legislative purpose as well as any provision or data that can be predicted by the citizens, and even if the specific legislative purpose of the Act is recognized to be combined with the previous land and the land owned in order to prevent excessive land holding and to promote the expansion of the base of the ownership of the high-class house, it is difficult to predict the basic area through the legislative purpose of the Act of this case, and therefore, it is not possible for citizens to stipulate the basic area of the Act of this case to be in violation of the Constitution of the Republic of Korea.

(B) substantial violation of the no taxation without law

Since aggregate land tax is a taxable cause for the ownership of land, it is unconstitutional to impose aggregate land tax under separate taxation on a person who does not own land more than the basic area as provided by the legal provision of this case in determining land attached to a house like this case, and it is unconstitutional to the extent that it is applied to a person who does not own land exceeding the basic area as provided by the legal provision of this case, and thus, is in violation of the essence of aggregate land tax.

(C) Violation of Article 13(3) of the Constitution

When applying the legal provision of this case to the effect that the owner does not need to be identical in case of a lot of land, it is unconstitutional because it is against the Article 13 (3) of the Constitution that provides for the prohibition of deferred taxation because it is a disadvantage to pay the aggregate land tax under separate taxation due to an act of another person, that is, an act of owning part of the site consisting of several lots of land.

3. Relevant statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

4. Determination

A. Whether Article 59 (including Article 38) and Article 75 of the Constitution are violated

(1) When the National Assembly, a representative organ of the people, provides for taxation requirements to guarantee the people's property rights (the legal principle of taxation requirements), and where it delegates Articles 38 and 59 of the Constitution that stipulate the so-called principle of no taxation without law to ensure the legal stability and predictability of the people's lives, it shall stipulate in advance the basic matters of the contents and scope to be prescribed by the Presidential Decree in order to prevent arbitrary interpretation and enforcement of administrative power and to achieve the principles of parliamentary legislation and the rule of law, in light of the legislative intent of Article 75 of the Constitution, the "specific scope of the scope of delegation to the Presidential Decree in accordance with the Presidential Decree in accordance with the provisions of Article 75 of the Constitution" should be determined in detail and clearly as possible by the Presidential Decree and the basic matters of the contents and scope to be prescribed by the Presidential Decree in the law, etc., and the existence of predictability should not be determined with only one specific provision, but shall be determined with the whole of the relevant Acts and subordinate statutes and shall be decided with the Constitutional Court en banc Decision 97Hun-Ba19697.

(2) As to the legal provisions of this case

The legal provision of this case provides for the land subject to separate taxation and provides that "land exceeding the standard area prescribed by Presidential Decree, which is the land annexed to a house under the provisions of Article 188 (1) 2 (1)". Since important elements to determine the land subject to separate taxation are specific and individually limited to "area". It is delegated to Presidential Decree specifically considering the legislative purpose of the legal provision of this case and the delegation diameter as follows. Thus, even if the scope and standard of "area," which is delegated matters are not expressly specified, it can be sufficiently recognized the inherent scope and limit of delegation in the legal provision of this case. Meanwhile, even if the legislative purpose of the legal provision of this case is not clear, it is necessary to regulate the ownership of land within a large city and to promote stability of land prices and low-end abuse of land attached to a apartment house, which is located in a large city, and if the area exceeds the standard area prescribed by Presidential Decree of Article 15 (1) 3 of this case, it shall not be included in the area prescribed by Presidential Decree of this case.

The plaintiff's above assertion is without merit.

B. Determination as to whether the substance violates the principle of no taxation without law

Land subject to the aggregate land tax under the separate taxation means land attached to a house located in the Special Metropolitan City pursuant to Article 234-15 (2) 5 of the Act and Article 194-15 (3) 3 of the Enforcement Decree of the Enforcement Decree of the same Act, namely, land attached to a house located in the Special Metropolitan City pursuant to the provisions of Article 234-15 (2) 5 of the Act and Article 194-15 (3) 3 of the Enforcement Decree of the same Act, which is part of land whose residential space is recognized as a place for residential life. Meanwhile, in the local tax practice, the provisions of Article 234-9 (1) of the Act are inferred by analogy, if there are several owners of such land, the aggregate land tax shall be calculated in proportion to their share of each landowner with respect to the land exceeding 662 square meters, and it cannot be deemed that the aggregate land tax is imposed under the separate

The plaintiff's above assertion is without merit.

C. Determination as to whether Article 13(3) of the Constitution of the Republic of Korea violates Article 13(3) (Prohibition of Force Majeure)

As seen earlier, in light of the purport of the legislation and the method of calculating the aggregate land tax to be imposed on the aggregate land tax under the separate taxation, the aggregate land tax under the separate taxation is directly imposed on the owners of land of one person who contributed to the ownership and use of land contrary to the above legislative purpose, and it cannot be deemed that the land tax is imposed on those who are not owners of land annexed to the land of one house, as alleged by the Plaintiff, and all citizens cannot be deemed to violate the provisions of Article 13(3) of the Constitution, which is interpreted to mean that all disadvantageous treatment due to all other persons’ acts, not their own acts.

The plaintiff's above assertion is without merit.

5. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the provision of Article 234-15 (2) 5 of the Local Tax Act, which is the basis of the disposition of this case, is a provision in violation of the Constitution, is dismissed. It is so decided as per Disposition.

Judges Kim Jong-sik (Presiding Judge)