헌법상 혼인의 보호와 주택세제

Amidst the grave situation where marriage and family life is in jeopardy due to rise in non-marriage and low birth rates, this article evaluates the taxation system for housing, which is the living foundation for marriage and family life, and suggests improvement measures in terms of the constitutional protection of marriage. Marriage protection under the Constitution is a basic right, composed of right to liberty, right to equality, social rights and institutional security. The right to liberty and equality in terms of marriage protection under the Constitution is subject to strict constitutional review based on the principle of proportionality and is protected from unjust infringement by the state; whereas the principle of prohibition of excessive restriction is applied for the social rights aspect of the protection of marriage. Further, in order to ensure marriage and family life, active financial support by the state is required. In terms of tax law, marriage protection under the Constitution firstly requires the prohibition of discriminatory taxation for married couples, and active support by tax expenditure on marriage is further desired. Housing is subject to taxation at the stage of acquisition, possession, and transfer. The current housing tax system defines a family community formed by marriage as a household, and gives tax benefits to a household owning a single house while imposing heavy tax burden on owners of multiple houses. Such current household-oriented housing tax system, where tax exemption and heavy taxation is determined based one house per one household regime, gives both married couples and couples about to be married, compared to unmarried people or couples in de facto marriages, an incentive to deviate from marriage and attempt to reduce the tax burden. This is due to the fact that unlike unmarried people who are subject to tax benefits even if they each own a house, married couples can only receive tax reduction for a single house as a couple and bear a heavy tax burden for owning multiple houses. This violates the constitutional protection of marriage by discriminating against married communities in favor of unmarried people or couples in de facto marriage and by violating free decision making for marriage. As a measure to improve such household-oriented housing tax system in light of the constitutional protection of marriage, it is necessary to change the taxation unit from an individual unit system to a married unit system. For the married unit system, tax benefits should be granted to one house per person for a married couple in taxing the acquisition, possession and transfer of a house and thereby removing the discriminatory tax burden for marriages. Alternatively, even if the household-oriented system is maintained, it is reasonable to grant tax benefits to two houses for the constitutional protection of marriage, thereby allowing a similar outcome to the married unit system. The individual housing tax system should also be reorganized so as to constitutionally protect marriage by eliminating unconstitutional elements regarding additional residency requirements for special long-term holding deductions and the application of the 12% gift and acquisition tax rate for gifts between married couples. Such improvement plan for the housing tax system not only prevents violations of the right to freedom and equality to ensure constitutional protection of marriage, but also actively guarantees the protection of marriage as a social right in the era of non-marriage and low birth rates.