[1] The scope of application to the pertinent case, etc. under the amended Act as a result of a decision of inconsistency with the Constitution on Land Excess Profit Tax Act

[2] In a case where the land was designated as an urban design area and can be developed only jointly with a neighboring land, whether it constitutes a land, the use of which is prohibited or limited under Article 8(3) of the Land Excess Profit Tax Act

[1] In the case of 92Hun-Ba49, 52 on July 29, 1994, the Constitutional Court rendered a decision that the whole old Land Excess Gains Tax Act (amended by Act No. 4807 of Dec. 22, 1994) does not coincide with the Constitution. Not only repeal or revision of the Act but also repeal or revision of the Act, when amending the Act, the Constitutional Court widely delegated to the legislative discretion the removal of various unconstitutional elements raised in the reason of the decision, such as the taxation of unrealized profits, double taxation, and the scope of taxable objects, and the improvement of the unconstitutional portion. Accordingly, each of the above provisions, including the provisions specifically pointed out unconstitutional in the above decision, was amended by Act No. 4807 on Dec. 22, 1994, which was amended by the Ordinance No. 1965 of Dec. 14, 199 and each of the above provisions, which was amended by Ordinance No. 1057, Dec. 14, 1994.

[2] If a parcel of land after its acquisition is designated as an urban design zone and can be developed only jointly with neighboring land, it shall be deemed that its use is particularly limited beyond the ordinary limit according to its use. Thus, since it constitutes a parcel of land, the use of which is prohibited or restricted under the provisions of the law after its acquisition under Article 8(3) of the Land Excess Gains Tax Act and Article 23 subparag. 1 of the Enforcement Decree of the same Act, and its use is excluded from idle land, etc.

[1] Article 107(1) of the Constitution of the Republic of Korea; Article 47(2) of the Constitutional Court Act; Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Profit Tax Act / [2] Article 8(3) of the Land Excess Profit Tax Act; Article 23 subparag. 1 of the Enforcement Decree of the Land Excess Profit Tax Act

[1] Supreme Court Order 92Hun-Ba49, 52 delivered on July 29, 1994 (No. 12792No. 36 delivered on July 28, 1995) Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963), Supreme Court Decision 93Nu22548 delivered on October 13, 1995 (Gong1995Ha, 382 delivered on November 7, 1995), Supreme Court Decision 93Nu8238 delivered on September 39, 195 (Gong1995Ha, 3937), Supreme Court Decision 92Nu1829 delivered on November 1969, 194 (Gong1947 delivered on November 194, 195)

Plaintiff (Attorney Lee Jung-won, Counsel for the plaintiff-appellant)

Samsung Head of Samsung Tax Office

Seoul High Court Decision 92Gu32793 delivered on July 15, 1993

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff acquired and owned 1/5 shares of 121.4 square meters in Seoul ( Address omitted) on September 15, 197, and the Mayor of Seoul Special Metropolitan City recognized the fact that the land of this case was incorporated into an urban design zone on February 4, 1987 and the land of this case cannot be constructed solely on the ground and is jointly developed with neighboring sites, and that the land of this case cannot be constructed on the ground, and it cannot be deemed that the use of the land of this case constitutes a land prohibited or limited by the law under Article 23 subparagraph 1 of the former Enforcement Decree of the Land Excess Profit Tax Act, just on the ground that the land of this case is not constructed jointly with neighboring land.

2. However, on July 29, 1994, the Constitutional Court rendered a decision that the whole of the former Land Excess Profit Tax Act (No. 4177 of Dec. 30, 1989, amended Act No. 4561 of Jun. 11, 1993, Act No. 4563 of Jun. 11, 1993, hereinafter referred to as the "Land Tax Act") does not conform with the Constitution. The Constitutional Court decided that the whole of the statutes do not conform with the Constitution, as well as the repeal or revision of the law, with respect to the legislative amendment, the removal of various unconstitutional elements raised in the reason of the decision such as taxation of unrealized benefits, double taxation, scope of taxation subject matter, and the scope of taxation subject matter, and the amendment of the former Tax Act, which is widely delegated to the legislative discretion of the legislative branch, and thus, the amendment of the former Tax Act No. 1593 of Dec. 14, 1994, which is thus unconstitutional.

3. As duly determined by the court below, if the land of this case after its acquisition is designated as an urban design zone (which is based on Article 8-2 of the former Building Act before it was amended by Act No. 4381 of May 31, 191) can be developed only jointly with neighboring land, it shall be deemed that its use is specially restricted beyond the ordinary limit according to the purpose of the land in question (see Supreme Court Decisions 93Nu2988, Mar. 25, 1994; 93Nu17928, May 24, 1994; 93Nu17928, May 24, 1994; 93Nu17928, etc.), Article 8(3) of the Saturdays, Article 23 subparag. 1 of the amended Seocho Tax Act (amended by Presidential Decree No. 1472 of Dec. 31, 194).

In contrast, the court below determined that the land of this case was not prohibited or restricted by the provisions of the statutes, and it did not apply Article 23 subparagraph 1 of the Enforcement Decree of the former Enforcement Decree of the Land Tax Act, but applied Article 23 subparagraph 1 of the former Enforcement Decree of the Land Tax Act to improve the former Land Tax Act according to the above decision of non-conformity with the Constitution, thereby affecting the application of the law. The part pointing this out in the grounds of appeal is with merit.

4. Therefore, without examining other grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)