종합부동산세법 제7조 제1항 등에 대한 헌법불합치결정을 계기로 재조명되는 헌법불합치결정의 의미 및 관련 조세사건의 처리 문제

Abstract

So far, most of constitutional discordance adjudications of tax law were those which state that organs(including court) should stop to apply such relevant statute. But this constitutional discordance adjudication is that which state that organs should keep applying revelant statute. If constitutional court decides that relevant statute is not in accordnce with the constitution, the organs(including court) cannot apply such relevant statute to the concerned case and have to stop to make progress of relevant procedure. Then if improvement law is established by the National Assembly, the organs should deal with the case by applying improvement law to the case, retroactively. In this case, the National Assembly should provide proper retroactive articles in enacting improvement law in accordance with the constitutional discordance adjudication. If the improvement law doesn’t include the retroactive provision, whether the improvement law is retroactively applied without the retroactive provision? Someone assert so, but the problem of retroactive application of law is subject to the legislative power. Therefore, if the provision of the improvement law is retroactively applied without retroactive provision by decision of the Constitutional Court, this means that the Constitutional Court exercise the legislative power. that is not reasonable. Accordingly, if improvement law doesn’t include such retroactive provision, the improvement law generally comes into effect in the future In case like this constitutional discordance decision of the type of keeping applying relevant law, court and administrative office should deal with the case according to the law which is decided as unconstitutional. It is problem whether the law decided as discordant with constitution is applied to such relevant case dealed in the procedure of constitutional complaint or constitutionality decision of a law upon the request of the court, or not. The law or clauses decided as discordant with constitution should be applied to such relevant pending case, becase it is unreasonal to discriminate between such revelant case and same kind of cases. Accordingly, in principle complaint of such relevant case can’t be relived in spite of the discordance decision. The past constitutional discordance decision of land-excess-profit tax law is the type of stopping to apply the relevant law, and then although the improvement law didn’t provide retroactive provision, the Supreme Court relived relevant plaintiff by applying the improvement law to the relevelant case which had been suspending in procedure. This decision may be accepted for reason of concrete propriety, but I can’t be in favor of that decision. becase it is not reasonable that the Supreme Court applied the improvement law without retroactive provision to the relevant case, retroactively. Anyway, all of taxpayers who had brought legal actions to administration adjudgement institution or court against the imposement disposition of tax of land excess profit were relived by the decision of the Constitution and the Supreme Court. However, taxpayers who hadnt brought those legal acctions and payed tax on his own will couldn’t be relived. So, the problem of unequality occurred. But, that problem doesn’t particulary occur in case of this constitutional discordnace decision of integrated real estate tax law. Because this constitutional discordnace decision of integrated real estate tax law isn’t the type of stopping to apply, but that of keeping applying, therefore even taxpayers who brought legal actions can’t be also relived due to application of the concerned law which is decided as disaccordant to the revelent pending case.