[2] Whether a new local government's change of its district, or abolition, establishment, division, or consolidation under Article 5 (1) of the former Local Autonomy Act includes a debt to "property" to be succeeded by the local government that has jurisdiction over the area (negative)

[3] In a case where a local government occupies a road as a de facto controlling entity, the method of determining a specific occupying entity under Article 5(1) of the former Local Autonomy Act

[4] The case holding that a request for proposal of unconstitutionality as to Article 5 (1) of the former Local Autonomy Act is unlawful because it merely criticizes the court's result of trial on the grounds of the recognition and evaluation of facts and the interpretation and application of law, which serve as the basis of the relevant judgment

1. The record reveals the following facts.

A. The applicant filed a lawsuit against the applicant and Seoul Special Metropolitan City as Seoul Central District Court Decision 2002Gahap82868, which is the designated party, and the applicant filed a lawsuit for the return of unjust enrichment against the applicant and Seoul Special Metropolitan City. From around 1992, the Seoul Special Metropolitan City or the applicant claimed that the applicant filed a return of unjust enrichment due to the possession and use between the applicant and other designated parties (hereinafter “the applicant, etc.”) without any authority from around 1992, which is the ownership of the applicant and other designated parties (hereinafter “the applicant, etc.”) as the de facto controlling entity, such as providing the applicant with the land of 153-21 m201 m201 square meters (hereinafter “the land in this case”) for the general public. Thus, the applicant filed a claim against the Seoul Special Metropolitan City and the applicant as the conjunctive applicant filed a return of unjust enrichment.

B. The first instance court and the second instance court of the instant case (Seoul High Court 2005Na101491) determined that the Plaintiff was obligated to return unjust enrichment inasmuch as the Plaintiff actually occupied and used the instant land for the said period is not the Seoul Special Metropolitan City but the applicant.

C. As to this, the applicant filed an appeal with the Supreme Court Decision 2007Do8914, the land in this case is planned to be a road as an urban planning facility (road) in Seoul Special Metropolitan City, and when the Seoul Special Metropolitan City implements an urban planning facility project by installing a water supply room, etc. under its ground, the land in this case is naturally occupied by the Seoul Special Metropolitan City. The applicant does not have the right to construct, expand, pack and purchase the land in this case or implement the procedure for road recognition under the Road Act as well as the procedure for road recognition under the Road Act. Thus, even after the enforcement of the Local Autonomy Act, the affairs concerning the land in this case still fall under the Seoul Special Metropolitan City’s affairs. However, even after the enforcement of the Local Autonomy Act, the applicant’s interpretation that the applicant becomes the subject of the obligation to return unjust enrichment on the land in this case by applying Article 5(1) (hereinafter “the Local Government newly under the jurisdiction of the local government”) uniformly to this case becomes the subject of the adjudication on the unconstitutionality of the pertinent provision in this case.

2. In order for a court to seek a trial on the constitutionality of a law, the pertinent law must be the premise for a trial on the constitutionality of a law. Here, the term "the premise of a trial" means that a specific case should be pending before the court, the law at issue should be applicable to a trial on the relevant litigation case, and the court in charge of the relevant case should make another decision depending on whether the law is in violation of the Constitution (see, e.g., Supreme Court Order 2002Hun-Ba13, Sept. 27, 2002). If a court asserts only that the result of the court's trial on the grounds of the recognition and evaluation of facts, which form the basis of the relevant trial, and the interpretation and application of a law without specifically stating the unconstitutionality of a law itself, it cannot be viewed as a dispute on the constitutionality of the pertinent law (see, e.g., Constitutional Court Order 9Hun-Ba98, Aug. 31, 200; Supreme Court Order 206Hun-Ba96, May 26, 206).

Meanwhile, according to the legal provisions of this case, the new local government having jurisdiction over the area shall succeed to its affairs and property when there is a change of district, abolition, division, or consolidation of local governments. However, in light of the provisions of Article 133(1) and (3) of the Local Autonomy Act, the term "property" under the legal provisions of this case means only all objects and rights worth property other than cash, and does not include obligations (see Supreme Court Decisions 91Da17207, Oct. 22, 1991; 91Da40498, Jun. 26, 1992; 91Da4098, Jun. 199, etc.). It should be viewed that the form of occupation of the State or local government should be determined by the public announcement of the approval of routes and road zones under the Road Act, or the construction of roads under the implementation of urban planning projects under the Urban Planning Act, and it should be viewed that it is actually controlled by the Special Metropolitan City or autonomous Gu under the provisions of this case 98.

3. Examining the premise of such legal doctrine, first of all, the “property” succeeded to under the legal provision of this case does not include “debt,” and thus, the legal provision of this case constitutes a typical beneficial provision (beneficial provision) and thus, cannot be deemed as having any active restriction on the applicant’s legal interest.

Furthermore, even if an applicant succeeded to the de facto possession of the land portion, etc. of this case from Seoul Special Metropolitan City on May 1, 1988 pursuant to the legal provision of this case, if the applicant did not occupy and use it from January 1, 1997 to December 31, 2004, the claim for return of unjust enrichment against the applicant, etc. of this case should be rejected. Thus, the court's decision on the relevant case cannot be deemed to have been affected by the constitutionality of the legal provision of this case.

Therefore, the argument in the grounds for the motion to propose the unconstitutionality of this case cannot be deemed to have explicitly indicated the reasons why the provision itself is interpreted as unconstitutional, and merely it is nothing more than to criticize the result of the court's trial on the grounds of the recognition and evaluation of facts and the interpretation and application of the law, which are the basis of the relevant trial. Thus, the motion to propose the unconstitutionality of

4. Therefore, we decide to dismiss the instant application. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)