Whether Article 9(1) of the former Inheritance Tax Act is unconstitutional (affirmative) and the scope of the effect of the Constitutional Court's decision on the unconstitutionality thereof.

In the case of 96Hun-Ga19, 96Hun-Ba72 on December 24, 1997, the Constitutional Court held that Article 9(1) of the former Inheritance Tax Act (amended by Act No. 4662 on December 31, 1993) provides that "the value of donations to be added to the value of inherited property shall be based on the current status as at the time of commencement of inheritance," which imposes significant restrictions on the right of disposal of inherited property by the inheritee, goes beyond the limit of the legislative formation right on property rights, goes against the principle of prohibition of excessive legislation, which is the limit of fundamental rights, and thus goes against legal stability, as it violates the principle of prohibition of excessive legislation, which is the limitation of fundamental rights, and thus it violates the principle of no taxation without law, which causes double burden of inheritance tax and transfer income tax on the increased value between the time of donation and the time of commencement of inheritance, and thus, the decision is in violation of Article 23(1), Articles 37(2), 38, and 59 of the Constitution.

Articles 23(1), 37(2), 38, and 59 of the Constitution of the Republic of Korea; Article 9(1) of the former Inheritance Tax Act (amended by Act No. 4662 of Dec. 31, 1993) (see current Article 60(4) of the Inheritance Tax and Gift Tax Act)

Constitutional Court Order 96Hun-Ga19, 96Hun-Ba72 delivered on December 24, 1997 (HunGong25, 123)

Plaintiff 1 and six others (Attorney Yoon Young-young, Counsel for the plaintiff-appellant)

The director of the tax office

Seoul High Court Decision 93Gu31193 delivered on October 8, 1996

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

The grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment of the court below, the court below, based on the evidence presented in its judgment, found that the tax authority's investigation data on the nominal or real name account that was found by tracking the accounts of the purchase price of ○○○○○ stock company's shares, etc., which are owned by the deceased Nonparty, who is the deceased Nonparty, was the deceased, was 3,052,848,90 won including the total amount of financial bonds stated in the separate sheet 3 in the judgment below, 1,293,327, and 4, and 3,052,890 won including those stated in the separate sheet 3,000,000, 2000 won, 2,000 won, 3,052,848,990 won was omitted from the inheritance at the time of receiving inheritance from the deceased, and found that the above financial bond was not owned by the deceased's inherited property at the time of the commencement of inheritance, and that the above financial bond was not owned by the plaintiff 1, etc.

In light of the records, the above recognition by the court below is just, and there is no error of law such as violation of the rules of evidence, incomplete deliberation, omission of judgment, failure of reasoning, etc. as pointed out in the grounds of appeal, and the court below acknowledged that the financial claims and shares of this case were owned by the inheritee by considering the facts and circumstances acknowledged by the evidence cited in the judgment, including the above confirmation document, and the reasons for appeal, and it is clear that the plaintiffs had the burden of proving that the financial claims and shares of this case were inherited property, as the circumstance or evidence was insufficient to reverse the above recognition, and it is obvious that the defendant had the burden of proving that the financial claims and shares of this case were inherited property. Thus, there is no error of law such as misunderstanding of legal principles as to the allocation of burden of proof or lack

2. On the third ground for appeal

According to the reasoning of the judgment below, the court below determined that the Defendant’s disposition of this case, which calculated the value of each donated property stated in the separate sheet No. 5, based on the current status at the time of the commencement of inheritance, not at the time of donation, cannot be deemed as invalid because Article 9(1) of the former Inheritance Tax Act, which provides that the value of each donated property to be added to the value of inherited property shall be based on the current status at the time of the commencement of inheritance, cannot be deemed as invalid because it is unreasonable and invalid.

However, the Constitutional Court rendered a decision that "the value of the gift to be added to the value of inherited property" in Article 9 (1) of the former Inheritance Tax Act prior to the above amendment violates the principle of prohibition of excessive legislation, which is the limit of fundamental rights, and thus violates the principle of prohibition of excessive legislation, as it is impossible to predict the tax amount to be borne due to the donation, and thus violates the principle of no taxation without law by causing the result of double burden of inheritance tax and transfer income tax on the increase of value between the time of donation and the time of commencement of inheritance, and thus, violates Articles 23 (1), 37 (2), 38, and 59 of the Constitution. The above decision of unconstitutionality has been made in violation of Article 23 (1), 38, and 59 of the Constitution, since the legal effect of the above decision of unconstitutionality is the premise of the judgment, and the above decision of the court below is therefore justified.

3. Therefore, without examining the remaining 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)