법원과 헌법재판소의 조세사건에 있어 헌법판단의 차이―위헌심사형 헌법소원시 위헌결정을 중심으로―

Abstract

This article concerns 19 important, tax-related cases among the Constitutional Court’s decisions striking down statutes as unconstitutional in the constitutionality review-type of constitutional petitions. In the cases, while the courts held a statute as constitutional, the Constitutional Court held a statute as unconstitutional. Chapter Ⅱ concerns the overall legal basis and the current state of the constitutionality determination of the courts and the Constitutional Court. Chapter Ⅲ reviews the 19 cases in the aspects of ⅰ) relevant statutes and legal issues；ⅱ) determination on the Constitution which the courts dismissed the request of a party for petition of unconstitutionality review, but the Constitutional Court issued a decision striking down a statute as unconstitutional；and ⅲ) whether relevant statutes were amended after the decisions and cases related to the decision. Chapter Ⅳis an overall summarization, in three aspects, of the characteristics of decisions striking down a statute as unconstitutional in the constitutionality review-type of constitutional petition. As the conclusion of Chapter Ⅴ, among the 19 decisions, it is hard to say that there is any consistency in the courts' constitutionality determination,but the decisions of the Constitutional Court shows consistency. Where the Constitutional Court has issued a decision striking down a statute as unconstitutional, it is difficult to find a case where the Supreme Court made a different constitutionality determination directly contradicting the Constitutional Court. However, that is not the case in the decision restrictively striking down a statute as unconstitutional. Relevant statutes were amended pursuant to holdings of the 19 decisions of the Constitutional Court, and when comparing the statues before the Constitutional Court's decision and the Supreme Court's decision and after the amendment, it is difficult to find any decisions of the Constitutional Court and the Supreme Court which contradict the Constitutional Court's opinion. Although the Supreme Court decision of February 12,1993 (92Nu5478) regarding general delegated legislation held a statute as constitutional, unlike the Constitutional Court's subsequent decisions striking down the statute as unconstitutional, such statute has to be interpreted as voided by the Constitutional Court's decision.