[2] In a case where Gap et al. made a request for adjudication on the unconstitutionality of statutes on the grounds that Article 56 (1) 4, Article 58 (1), and Article 58 (3) of the former National Land Planning and Utilization Act violated the principle of prohibition of comprehensive delegation of statutes under Article 75 of the Constitution, the case holding that each of the above provisions cannot be deemed to violate the principle of prohibition of comprehensive delegation of statutes or the principle of excessive prohibition in light of various circumstances

Article 41(1) of the Constitutional Court Act provides that a court may request an adjudication on the constitutionality of a law to the Constitutional Court only when the law is the premise of a judgment on whether it violates the Constitution. Thus, whether the enforcement decree, which is a Presidential Decree, is illegal shall not be subject to its proposal (see, e.g., Supreme Court Order 90Da5, Jun. 11, 1991; Supreme Court Order 2008Ga17, Jun. 12, 2008).

This part of the request for adjudication on the constitutionality of a law is unlawful.

2. As to Articles 56(1)4 and 58(1) and (3) of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201; hereinafter “National Land Planning Act”).

(a) Summary of the application;

The applicants seek a trial on the constitutionality of each of the above statutory provisions on the grounds that each of the above statutory provisions violates the principle of prohibition of comprehensive delegation under Article 75 of the Constitution and the principle of prohibition of excessive delegation under Article 37 (2) of the Constitution.

B. Determination

(1) Article 75 of the Constitution provides that “The President may issue a Presidential Decree with regard to the matters delegated with the specific scope of the Act,” which provides the constitutional basis for the delegation of the Act, and at the same time provides for the specific scope of the delegation of the Act, the limitation of the delegation of the Act shall be predictability. In this case, “The possibility of prediction” means that any person, who is already provided for in the Act, shall be able to predict the course of the contents to be provided for in the Presidential Decree, etc. from the relevant Act. The existence of such predictability shall not be determined with only one specific provision, but shall be determined with a organic and systematic comprehensive determination, based on the nature of the relevant specific provision and the legislative intent of the Act, if it is reasonably predicted in light of the specific and individual review of the nature of each applicable Act and the legislative intent of the Act (see, e.g., Supreme Court en banc Decision 2007Ga32, 207Du984, Oct. 26, 2007; Constitutional Court en banc Decision 2006.

Article 56(1)4 of the National Land Planning and Utilization Act provides that "any person who intends to perform an act prescribed by Presidential Decree as land partitioning (excluding the partitioning of a site on which a building is located) shall obtain permission (hereinafter referred to as "permission for development acts") from the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun (hereinafter referred

In addition, Article 58(1) of the National Land Planning and Utilization Act provides that “Where the details of application for permission for development activities meet the following standards, a person having the right to permission for development activities shall obtain permission for development activities.” Each subparagraph thereof, “shall meet the scale of development activities prescribed by Presidential Decree in consideration of the characteristics of each special-purpose area; 2. There shall not be any violation of the contents of an urban or Gun planning; 3. There shall be no hindrance to the implementation of an urban or Gun planning project; 4. There shall be no obstacle to the height of land in the surrounding area, gradient, status of land, water drainage, water drainage, drainage of river, lake and marsh, wetlands, etc.; 5. There shall be adequate standards for permission for development activities and standards for sites necessary therefor; and Article 58(3) of the National Land Planning and Utilization Act provides that “where permission may be granted pursuant to paragraph (1), the standards for permission shall be determined by Presidential Decree, by strengthening the purpose of use of the area, the development status of the area, the current status of infrastructure, the current status of green area, etc.”

In light of the aforementioned legal principles, considering ① the legislative purpose of the National Land Planning and Utilization Act is to prevent difficult development of national land and to rationalize land utilization by regulating the specific characteristics of land classified by specific use area, etc., ② diversity of acts subject to such legislative purpose and development permission, characteristics of land in each specific use area, development situation of an area, and possibility of changes in perception of development permission according to social and economic conditions, etc., it is necessary to delegate the contents of land division subject to development permission to subordinate Acts and subordinate statutes to a certain extent that may be predicted to a certain extent than that provided for in the Act without any omission. ③ In the case of Article 56(1)4 of the National Land Planning and Utilization Act, the outline of the scope of land division to be provided for by Presidential Decree through the relevant provisions, such as the National Land Planning and Utilization Act’s provision of specific use area, etc., and in the case of Article 58(1) and (3) of the National Land Planning and Utilization Act, each of the above provisions cannot be deemed as a violation of the principle of prohibition of delegation by the Constitution.

(2) In addition, regulating a certain scope of land division as development activities is intended to prevent land division in accordance with the legislative purpose of the National Land Planning Act, as seen earlier, from causing difficulties in the development of the national land because land is divided into a small scale and easily subject to transactions, and thus, its purpose is justifiable; ② The division of land is subject to permission as development activities; thus, it is not restricted to the owner’s share disposition or use or profit-making; thus, it cannot be viewed as infringing on the essential contents of the property right beyond the ordinary social limit on the property right; on the other hand, it cannot be viewed as infringing on the property right; and ③ The public interest, such as promoting public welfare through balanced development and preservation of the land that can be achieved therefrom, is very large; ③ The land property right has a strong sociality and public nature; and ultimately, it cannot be deemed that each of the above provisions violates the basic rights of the applicant, such as the property right, in violation of the principle of excessive prohibition under Article 37(2) of the Constitution.

3. Conclusion

Therefore, among the applications filed for an adjudication on the unconstitutionality of the National Land Planning Act, the applications filed under Articles 51 subparag. 5 and 56(1) and (2) of the Enforcement Decree of the National Land Planning Act shall be dismissed, and the remaining parts shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)