헌법재판소의 헌법불합치 결정에 따라 개정된 토지초과이득세법 제8조 제1항 제14호 ㈎목과 토지초과이득세법시행령 제21조 제1항 제1호가 소급하여 적용될 수 있는지 여부

Article 8(1)14(a) of the former Land Excess Profit Tax Act (amended by Act No. 4807, Dec. 22, 1994) and Article 21(1)1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470, Dec. 31, 1994); however, Article 21(1)4 of the former Enforcement Decree of the former Land Excess Profit Tax Act (amended by Presidential Decree No. 14470, Dec. 1, 1994); however, Article 8(1)1 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 14470, Dec. 14, 1994; Presidential Decree No. 1981, Feb. 14, 1997; Presidential Decree No. 19684, Feb. 16, 197>

구 토지초과이득세법 (1994.12.22. 법률 제4807호로 개정되기 전의 것) 제8조 제1항 제14호 ㈎목 , 토지초과이득세법 제8조 제1항 제14호 ㈎목 단서 , 구 토지초과이득세법시행령 (1994.12.31. 대통령령 제14470호로 개정되기 전의 것) 제21조 제1항 제1호 단서 , 토지초과이득세법시행령 제21조 제1항 제1호

Supreme Court Decision 94Da20402 delivered on July 28, 1995 (Gong1995Ha, 2963) 93Nu7327 delivered on November 7, 1995 (Dong Branch), Constitutional Court Decision 92HunBa49,52 delivered on July 29, 1994 (No. 12792No. 36)

Plaintiff

Head of Seocho Tax Office

Seoul High Court Decision 92Gu31905 delivered on March 2, 1993

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

1. We examine the Plaintiff’s grounds of appeal.

According to the reasoning of the judgment below, the court below held that the land of this case cannot be excluded from idle land pursuant to Article 21 (1) 1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), since there is no evidence to acknowledge that the land of this case is "a parcel owned by a member of a household who does not own a house".

Article 8(1)14(a) of the former Land Excess Profit Tax Act (amended by Act No. 4807, Dec. 22, 1994; hereinafter the same shall apply) and Article 21(1)1 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 1470, Dec. 31, 1994; hereinafter the same shall apply) shall be deemed as idle land, in principle, but only one lot of land owned by one household member who does not own a house and its land category is not prohibited or restricted by the provisions of Acts and subordinate statutes, and it shall be excluded from the idle land, so that the land category of which is less than 196(1)4 of the former Land Excess Profit Tax Act (in the case of this case, 198 square meters in the case of the Seoul Special Metropolitan City) and Article 8(1)4(b) of the former Land Excess Act (amended by Presidential Decree No. 1984, Jul. 29, 1994).

However, the plaintiff does not submit any evidence as to the fact that the land of this case is a member of one household who does not own a house, claiming that it is excluded from idle land in accordance with the above provision, and it is evident that it is due to the plaintiff's negligence or misunderstanding. Therefore, the court below should have determined whether the land of this case constitutes idle land in accordance with the degree of proof after exercising the right of explanation and giving the opportunity to prove this point.

Nevertheless, the judgment of the court below which dismissed the plaintiff's claim on the ground that the plaintiff did not prove that the plaintiff is a member of one household who does not own a house without taking such measures, is erroneous in failing to perform his/her duty of explanation and thereby failing to exhaust all necessary deliberations, and it is obvious that such illegality affected the judgment, and therefore, it is reasonable to point this out.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)