구 소득세법 제104조 제1항 제2호의3에 대한 헌법적 평가 - 헌법재판소 2011. 11. 24 결정 2009헌바146의 평석을 겸하여 -

A purpose of a legislation of an article 104, clause 1, 3 of number 2 on the former income tax law is fair. However, it is violated a principle of taxation equality by levying on heavy tax of capital gains tax on the owners of multiple homes of a household by the marriage in 60% of a capital gain standard of assessment in the same rule. And, it infringes a property right of an owners of multiple homes of a household by the marriage not to prepare for a legislation or rule to minimize the damage of a property right by payment of a capital gain tax of a house in the same rule. In addition, it is violated a principle of balancing test, and it infringes a marriage freedom not to prepare for the legislation or rule that can solve a state of an owners of multiple homes of a household in the same rule during a considerable period. I cannot agree to judgment of constitutional court that same rule does not infringe a property right of the judgment petitioner of this case by 2009Hun-Ba146 decision of constitutional court on November 24, 2011. However, I agree that same rule infringes a marriage freedom of the judgment petitioner of this case by same decision of constitutional court. Therefore, an article 104, clause 1, 3 of number 2 on the former income tax law of contents levying heavily must prescribe a capital gain tax to the owners of multiple homes of a household in the future. However, the same rule must revise properly many problems that I showed on the top.