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The Retroactivity of Unconstitutional Judgement about the Law of Levying Tax - in relation to the Enactment of the Special Act for Refunding the School Land Tax
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조세 등 부과근거법령에 대한 위헌결정의 소급효 : 학교용지부담금 환급 등에 관한 특별법 제정과 관련하여

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Type
Academic journal
Author
Weon Choi (아주대학교)
Journal
Tax Law Association Seoul Tax Law Review Vol.15 No.3 KCI Accredited Journals
Published
2009.12
Pages
363 - 414 (52page)

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The Retroactivity of Unconstitutional Judgement about the Law of Levying Tax - in relation to the Enactment of the Special Act for Refunding the School Land Tax
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The constitutional court held that the school land tax was unconstitutional on March 31st 2005. The problem was where's the boundary of the retroactivity of unconstitutional judgement. The supreme court has held that the retroactivity of unconstitutional judgement affects all cases except the cases of formal finality and res judicata since 1993. Therefore, the majority of closing cases couldn't refund the school land tax as the above precedent even though there is the unconstitutional judgement. The not refunded group had demonstrated with the subject of urging the special law for refunding the school land tax against the members of the National Assembly since the holding of unconstitutional judgement by the constitutional court. At last, the National Assembly passed the special act for refunding the school land tax on March 14th 2008. This is the victory of taxpayers.
I want to examine the inefficient and unfair system of the retroactivity of unconstitutional judgement with this event as a momentum. I've studied on developing our system. Many scholars and lawyers have tried to set up the marginal line of the retroactivity of unconstitutional judgement, but they didn't chase up to the contemporary and korean consciousness and life.
I've referred to foreign system such as U.S. and German's, but they have struggled between reliance and equality, too. I suggest that we can make the leading system on the retroactivity of unconstitutional judgement in the world. The stream of that confirms the victory of equality than reliance.
Although the act of constitutional court § 47, ② is unconstitutional, the constitutional court couldn't declare that the § 47, ② is unconstitutional. I encourage those cases of the constitutional court have changed. The taxpayers with the cases of formal finality and res judicata should refund the tax from administration by unconstitutional judgement. That system is efficient and fair. My point is that the retroactivity of unconstitutional judgement should be realized in all cases without exception. That is the way of diminishing the social cost, the uniformity with common sense and keeping the principal of people's owning sovereignty.

Contents

〈국문요약〉
Ⅰ. 서론
Ⅱ. 외국의 입법례
Ⅲ. 위헌결정의 소급효
Ⅳ. 조세 등 부과근거법령의 위헌결정과 관련한 제 논점
Ⅴ. 결어
[參考文獻]
〈Abstract〉

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  • 대법원 1994. 10. 28. 선고 92누9463 판결

    가. 법률에 근거하여 행정처분이 발하여진 후에 헌법재판소가 그 행정처분의 근거가 된 법률을 위헌으로 결정하였다면 결과적으로 행정처분은 법률의 근거가 없이 행하여진 것과 마찬가지가 되어 하자가 있는 것이 되나, 하자 있는 행정처분이 당연무효가 되기 위하여는 그 하자가 중대할 뿐만 아니라 명백한 것이어야 하는데, 일반적으로 법률이 헌법에 위반된

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UCI(KEPA) : I410-ECN-0101-2010-329-003099942