[위헌제청신청][공1993.1.15.(936),272]
A. If the determination of the constitutionality of an order or rule is based on the premise of a trial, whether the request for an adjudication of constitutionality is made (negative)
B. Whether Articles 5, 5-2, 6, and 7 of the Protection of Military Installations Act are unconstitutional (negative)
A. If the determination of the constitutionality of an order or rule is based on the premise of a trial, the request for an adjudication on constitutionality is not allowed.
B. Article 5, 5-2, 6, and 7 of the Protection of Military Installations Act provides that the owner of a parcel of land located in a military facility protection zone shall be subject to many restrictions on the exercise of his/her property rights and shall be disadvantaged within the extent of such restrictions, and the above restrictions imposed in order to protect important military installations and ensure the smooth performance of military operations shall be deemed reasonable restrictions appropriate for public welfare. Since the disadvantages of the owner of the land caused by such restrictions are recognized to be the extent that he/she could have known that he/she would have not borne for the public welfare, they cannot be deemed to violate Article 23(3) of the Constitution on the ground that he/she did not provide for compensation for losses.
(a) Article 41(1)(b) of the Constitutional Court Act; Articles 5, 5-2, 6, and 7 of the Protection of Military Installations Act; Article 23(3) of the Constitution;
A. Supreme Court Order 91Hu16 Dated April 23, 1991 (Gong1991, 1555) dated June 11, 1991 (Gong1991, 1942)
Applicant 1 and one other applicants, the same general law firm, the Attorney Seo Young-gu, Counsel for the plaintiff-appellant
The request for an adjudication on unconstitutionality under Articles 8 through 10 of the Enforcement Decree of the Protection of Military Installations Act shall be dismissed, and the request for an adjudication on unconstitutionality under Articles 5, 5-2, 6, and 7 of the Protection of Military Installations Act shall be dismissed.
According to Article 41 (1) of the Constitutional Court Act, when a law violates the Constitution is the premise of a trial, the court in charge of the case may request the Constitutional Court to make an adjudication on the constitutionality of the order or rule ex officio or by the decision of the party's request. Therefore, in a case where a judgment on the constitutionality of the order or rule is based on the premise of a trial, the request for an adjudication on the constitutionality of the order or rule is not allowed, so the request for an adjudication on the constitutionality of the order or rule shall be dismissed as illegal.
In addition, the above restrictions imposed to protect important military installations and ensure the smooth performance of military operations are reasonable restrictions appropriate for public welfare, and the disadvantage of land owners in military installations protection areas under Articles 5, 5-2, 6, and 7 of the Protection of Military Installations Act cannot be said to be a violation of Article 23 (3) of the Constitution on the ground that the above restrictions are not imposed on the land owners in military installations protection areas under Articles 5, 5-2, 6, and 7 of the Protection of Military Installations Act on the ground that they were subjected to many restrictions on the exercise of their property rights and were disadvantaged within such limits.
Therefore, the part concerning Articles 8 through 10 of the Enforcement Decree of the Protection of Military Installations Act among the proposal for adjudication on the unconstitutionality of the applicant is unlawful and dismissed. The part concerning Articles 5, 5-2, 6, and 7 of the Protection of Military Installations Act shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.