[2] Whether Article 11, Article 29, and Article 31 of the former Special Act on Support to Areas, etc. adjacent to the granted zone of US Armed Forces in Korea violates the principle of excessive prohibition or proportionality under Article 37(2) of the Constitution, or violates Article 23 of the Constitution on Guarantee of Property Rights (negative)

[3] Whether Article 10 (1) 5 of the former Special Act on Support to Areas, etc. adjacent to the granted zone of US Armed Forces in Korea violates Article 11 of the Constitution on equal rights or violates Article 23 (3) of the Constitution on Guarantee of Property Rights (negative)

1. The applicant's status

As the plaintiffs of the Supreme Court case No. 2009Du16305 (hereinafter "the case in question"), the applicants seek the cancellation of the approval of the implementation of the "project for the construction of the complex complex for education and research on the grounds of the strike market" (hereinafter "the disposition in this case") on March 25, 2008 to the school juristic person Emphical Party.

2. Summary of reasons for the application;

A. Article 1 of the former Special Act on Support to Areas, etc. adjacent to the granted district of US Armed Forces (amended by Act No. 9000, Mar. 28, 2008; hereinafter “former Special Act on Support”) violates Article 23 of the Constitution regarding guaranteeing people’s property rights by forcing the applicants who are residents in the area adjacent to the returned district to bear another special sacrifice, focusing solely on the promotion of development.

B. Article 10(1)5 of the former Special Act on Assistance provides that a private business operator may become a project operator without any particular restriction, thereby violating Article 23(3) of the Constitution on the Guarantee of Property Rights of the people by acquiring the right to expropriate land, etc. under Article 2 of the Public Works Act, on the ground that the authorization and permission under relevant Acts and subordinate statutes is deemed granted pursuant to Articles 29 and 31 of the former Special Act on Assistance to the Development of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”), and the authorization and public notice of the project under Articles 20 and 22 of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Projects Act”), and Article 10(1)5 of the former Special Act provides that a private business operator may become a project operator without any specific restriction. In addition, unlike other Acts that grant a project operator the right to expropriate land, the former Special Act violates Article 11 of the Constitution

C. Article 11 of the former Special Act on Support excessively infringes on the property rights of residents by allowing the approval of the implementation of a project only with the examination of the form requirement through a document without the procedures for collecting residents’ opinions. Thus, it violates the principle of excessive prohibition or the principle of proportionality under Article 37(2) of the Constitution.

D. Articles 29 and 31 of the former Special Act on Assistance may be interpreted as granting without any restriction the validity of the legal fiction of authorization and permission under the relevant Acts and subordinate statutes and the legal fiction of project approval under the Public Works Act with respect to the disposition of project implementation approval under Article 11 of the former Special Act on Assistance, and thus excessively infringing on the residents’ property rights. Thus, it violates the principle of excessive prohibition under Article 37(2) of the Constitution or the principle of proportionality.

3. Determination as to Article 1 of the former Special Act on Assistance

In order for a court to make a request for adjudication on the unconstitutionality of a law, it should be a premise for a trial on whether the law in question is in violation of the Constitution. Here, the term "the premise of a trial" means that the law in question is pending in the court where the unconstitutionality of a law is at issue, and not only the case where the court in charge of the case in question makes a different judgment depending on whether the law is in violation of the Constitution (Supreme Court Order 2002 dated September 27, 2002; Supreme Court Order 2008Kab42 dated January 15, 2009).

However, Article 1 of the former Special Act on Assistance is merely a provision on the purpose of the former Special Act on Assistance, and there is no room to apply to the pertinent case seeking the cancellation of the disposition of this case.

4. Determination as to the part concerning the application for Article 11, Article 29, and Article 31 of the former Special Act on Assistance

According to Articles 7(1), 8(1), 11(1) through (3) and (6), 29(1), and 31(5) of the former Special Act on Support to Areas Adjacent to US Armed Forces in Korea (amended by Presidential Decree No. 20801 of Jun. 5, 2008), the contents, form, and purport of relevant Acts and subordinate statutes including Article 8(1) of the former Enforcement Decree of the Special Act on Support to Areas Adjacent to US Armed Forces in Korea (amended by Presidential Decree No. 20801 of Jun. 5, 2008), the substantive and procedural control under the above provisions up to the project implementation approval pursuant to Article 11 of the former Special Act, and Articles 29 and 31 of the former Special Act on Support establish the validity of the project approval agenda and the agenda with respect to the project implementation approval to facilitate implementation of the project, and thus, there are no reasonable grounds to believe that the project approval agenda and the validity of the approval, without any restriction, are unlawful.

5. Determination as to the part concerning the application for Article 10(1)5 of the former Special Act on Assistance

Even if the former Special Act on Assistance does not require a private business operator to acquire land more than a certain ratio in granting the right to implement the project, whether an individual statute imposes a project operator a certain amount of land shall be deemed to be entrusted to the legislative decision based on the public nature of the relevant business. In addition, if a private business operator is not able to implement a business without any limit, but intends to operate a business with approval for the implementation of the project, various substantive and procedural control should be taken as seen above, and interested parties who suffered disadvantage due to approval for the implementation of the project or the legal fiction of the relevant authorization and permission and the legal fiction of the project approval may dispute by seeking nullification or revocation of the approval for the implementation of the project. Comprehensively taking account of these various circumstances, Article 10(1)5 of the former Special Act cannot be said to contravene Article 11 of the Constitution on the Right to equality or contrary to Article 23(3) of the Constitution on the Guarantee of Property Rights.

6. Conclusion

Therefore, the part concerning Article 1 of the former Special Support Act among the instant applications is dismissed, and the part concerning Articles 10(1)5, 11, 29, and 31 of the former Special Support Act is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Applicants: Omitted

Justices Park Il-young (Presiding Justice)