[1] Whether an administrative disposition conducted based on the law is void as a matter of course before the Constitutional Court's decision of unconstitutionality on the law is made (negative)

[2] In a case where a person liable to pay excess ownership charges under the former Act on the Ownership of Housing Sites and a person liable to pay the excess ownership charges are identical to those subject to imposition, whether different imposition periods are separate dispositions (affirmative)

[1] If the Constitutional Court decides the law as unconstitutional after an administrative agency made an administrative disposition based on the law, the administrative disposition is found to be identical to that which was made without the legal basis. However, in order for a defective administrative disposition to be null and void as a matter of course, the defect must be serious and obvious. In general, the circumstance that the law is in violation of the Constitution cannot be objectively obvious before the Constitutional Court made a decision of unconstitutionality. Thus, such defect is only a ground for revocation of the above administrative disposition, and it does not constitute a ground for invalidation as a matter of course, barring special circumstances.

[2] The obligation to pay an excess ownership charge of an individual’s housing site under the former Act on September 19, 1998 (repealed by Act No. 5571 of September 19, 198) is created independently by each imposition period, while the individual owns a housing site exceeding the upper limit of the ownership of each household. Although the person liable for payment and the person liable for the imposition of the housing site are the same, the previous imposition disposition and the imposition period are different, respectively.

[1] Article 19 of the Administrative Litigation Act, Article 47 of the Constitutional Court Act / [2] Article 19 of the former Act on the Ownership of Housing Sites (repealed by Act No. 5571 of September 19, 198)

[1] Supreme Court Decision 96Nu1689 delivered on June 11, 1996 (Gong1994Ha, 3109), Supreme Court Decision 96Nu52359 delivered on April 10, 1998 (Gong1998Sang, 1267), Supreme Court Decision 94Nu4653 delivered on November 8, 1994 (Gong1994Ha, 3292), Supreme Court Decision 96Nu4671 delivered on August 23, 1996 (Gong196Ha, 298), Supreme Court Decision 96Nu1979 delivered on September 23, 199 (Gong196Ha, 298), Supreme Court Decision 9Nu53979 delivered on September 29, 197 (Gong1996Ha, 298)

Plaintiff

Korea

Seoul High Court Decision 99Na60735 delivered on February 1, 2000

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

We examine the grounds of appeal.

If the Constitutional Court, after an administrative disposition was rendered based on the law, decided that the law was unconstitutional, the administrative disposition would have been identical to that of the law, and thus, the defect would be serious, and it must be apparent. However, in general, the circumstances that the law violated the Constitution cannot be objectively clear before the Constitutional Court renders a decision of unconstitutionality, and barring any special circumstance, such defect constitutes a ground for revocation of the above administrative disposition, and it shall not be deemed a ground for invalidation (see, e.g., Supreme Court Decisions 93Da41860, Oct. 28, 1994; 96Nu1689, Jun. 11, 1996; 96Nu1689, Jun. 11, 1996). Even if the person liable for payment and the person liable for imposition are identical with the person liable for payment, a disposition for imposition of excess of the ownership charge of the site under the Act on a separate basis for each imposition period, different from the previous one imposed on the person liable for payment and the person liable for imposition.

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's decision of unconstitutionality on October 31, 1999 on the ground that the above Act, which served as the basis of the second disposition, should be returned to the absence of legal grounds, is the same as that of the law, and thus defective because the Constitutional Court made a lawsuit seeking revocation of the disposition of excessive ownership (the first disposition) and filed a petition for adjudication on constitutional complaint in relation to the above case, and the decision was made on April 29, 199 that the Act on the Ownership of Housing Site, which served as the basis of the above disposition from the Constitutional Court on April 29, 199, is unconstitutional. Thus, the court below rejected the plaintiff's decision of unconstitutionality on the ground that the above Act, which served as the basis of the second disposition, should be returned to the absence of legal grounds. However, the court below did not err in the misapprehension of legal principles as to the retroactive effect of the second disposition as to the revocation of the disposition, unless there were any special circumstances.

Therefore, the appeal is dismissed and all 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 Yoon Jae-sik (Presiding Justice)