11.Land Expropriation for Construction of Golf Course Case

[23-1(B) KCCR 288, 2008Hun-Ba166, 2011Hun-Ba35(consolidated), June 30, 2011]

The Constitutional Court held in a vote of 8 to 1 that one of two provisions at issue, which prescribes 'sports facilities' as a kind of 'infrastructure' subject to urban planning but delegates the authority to determine the type of facilities to the Presidential Decree, violates the rule against blanket delegation. A decision of incompatibility was rendered to prevent a legal vacuum or confusion caused by excluding even those sport facilities which must be included in an urban planning project. In addition, the Court held in a vote of 7 to 2 that the other provision which permits a private company, as an operator of urban planning project, to expropriate land necessary to implement that project, is constitutional.

Background of the Case

On May 21, 2007, the Governor of Gyeonggi-do finalized and made a public announcement on the Urban Management Planning forAnseong-si, which includes land owned by the petitioners. Subsequently,the mayor of Anseong-si approved and made a public notification of the implementation schedule of an urban planning project for the construction of a golf course on the aforementioned land.

State Wilshire, the operator company of the urban planning project, tried to make compensation agreements with the petitioners for the expropriation of their lands but failed. State Wilshire filed a request for a decision of land expropriation with the Gyeonggi-do Committee on Local Land Expropriation, which made a disposition in favor of State Wilshire on June 23, 2008. The petitioners filed a claim for the revocation of that disposition with the Suwon District Court and, while the case was pending, they also moved the court to file a request for constitutional review of the statutes arguing that the provisions at issueof the National Land Planning and Utilization Act violate Article 23 Section 3 and Article 37 Section 2 of the Constitution. Upon dismissal, the petitioners filed this constitutional complaint with the Court.

Provisions at Issue

National Land Planning and Utilization Act (enacted by Act No.6655 on February 4, 2002)

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

6.The term "infrastructure" means the following facilities and the kind of facilities shall be determined by Presidential Decree:

(d)Public, cultural and sports facilities, such as schools, playgrounds,public offices, cultural facilities, and sports facilities, etc.

Article 95 (Expropriation and Use of Land, etc.)

(1)The operator of urban planning facility project may expropriate or use any of the following goods or rights necessary for the urban planning facility project:

1.Land, buildings, or any goods fixed on such land;

2.Rights, other than ownerships of land, buildings, or any goods fixed on such land.

Article 86 (Operator of Urban Planning Facility Projects)

(7)Where a person, other than those stipulated under the following,intends to be designated as an operator of an urban planning project under paragraph (5), he/she shall meet the requirements prescribed byPresidential Decree concerning the size of the land in his/her possessionin the area subject to the urban planning facility project (excluding any State or public land) and the agreement ratio by landowners.

Summary of Decision

The Court held that the part of "sports facilities" of Article 2 Section6 Item (d) (hereinafter the "Definition Provision") of the National LandPlanning and Utilization Act (hereinafter the "NLPUA"), which allows land expropriation for the construction of "spots facilities" prescribed by the Presidential Decree, is incompatible with theConstitution, and that the provision that permits a private company, as an operator of urban planning facility project, to expropriate property including the land necessary for that project (the part of "the

operatorof urban planning facility project" of Article 95 Section 1 of NLPUA which issubject to Article 86 Section 7 of NLPUA; hereinafter the "ExpropriationProvision") is constitutional based on the followings.

1. Court Opinion

A. Regarding the Definition Provision

(1)Whether the Definition Provision violates the rule against blanket delegation

The Definition Provision, which stipulates sports facilities as a sort of 'infrastructure,' is closely connected with property restriction because it determines the scope of the property subject to the exercise of the expropriation power for the implementation of the urban planning facility project (hereinafter the "Project"). In terms of public necessity required for land expropriation, sports facilities vary in a wide range from those that are readily available to ordinary citizens to those thatcharge a certain amount of admission fees or those that are establishedonly for public interest regardless of the admission fees charged. Thus, unlike other kinds of infrastructure subject to the NLPUA whose public necessity is recognized in themselves such as transportation facilities and essential services of gas, water and electricity, in order to delegate the authority to determine the type and scope of sports facilities that come under infrastructure of the NLPUA to thePresidentialDecree, those sports facilities should be limited to those that have public necessity.

In the instant case, however, the Definition Provision delegates that authority to the Presidential Decree without any limitations on the type and scope of sports facilities which leads to the entire delegation of the authority to determine the type and scope of sports facilities that come under infrastructure to the administration. For the foregoing reasons, we conclude that the Definition Provision is incompatible with the Constitution violating the principle against blanket delegation, because it all-inclusively delegates the authority to the Presidential Decree without any consideration of the nature and public interest of individual sports facilities.

(2)Reason for the Court's rendering the decision of incompatibility with the Constitution

If this Court holds the Definition Provision unconstitutional, thatprovision will lose its effect from the date of the Court's pronouncementof that holding and thus, it would lead to a legal vacuum and confusion caused by excluding even those sport facilities which must be included for an urban facility planning project. Therefore, it is desirable for the Court to hold the Definition Provision incompatiblewith the Constitution rather than to hold that provision unconstitutional,making the Definition Provision to be tentatively applied until a new legislation removes the unconstitutionality of that provision.

B. Whether the Expropriation Provision infringes on the petitioners' property rights

The Project in itself satisfies the requirement of public necessity. The Expropriation Provision has the legitimate purpose of setting forth for the smooth operation of the Project. Private companies, under certain conditions, may also exercise the constitutional authority to expropriate land for public use, and the Expropriation Provision enables the operator of the Project to work on the Project withoutfriction; thus, the provision is a proper means to achieve the legislativepurpose mentioned above. In addition, we do not find that the Expropriation Provision violates the rule of least restrictiveness considering that: i) if the Project operator is not granted the authority of expropriation, the fulfillment of public interest through implementing the Project would be interrupted or delayed by the unilateral intent of the people who do not agree with the compensation; ii) the process up to the expropriation is proceeded under the lawful procedure of NLPUA; iii) the operator of the Project is required to pay proper compensation to the owners of land subject to the expropriation; and iv) an effective remedy such as the right to file an administrative suit is available for the case where there is a deficiency in an expropriation disposition. Furthermore, in light of the role urban planning facilities play in our communities, the Expropriation Provision cannot be deemed to have failed in balancing between the public interest and the private interest. Therefore, the Expropriation Provision

does not infringe on the petitioners' property rights either by not satisfying the requirement of public necessity of Article 23 Section 3of the Constitution or by violating the rule against excessive restriction.

2. Concurring Opinion of One Justice

The Definition Provision stipulates "sports facilities" as a sort of "infrastructure" of NLPUA and the Court quotes an instance of a "golf course," which is set forth by the regulation rather than the statute, as the ground for the unconstitutionality of that provision. By doing this, in my view, however, the Court causes confusion in the reasoning of unconstitutionality in a constitutional complaint under Article 68 Section 2 of the Constitutional Court Act where the Court is required only to consider the unconstitutionality of "statutes." By delivering its judgment of incompatibility with the Constitution, the Court confuses the legislative both about the grounds of unconstitutionality of the Definition Provision or about up to which part of that provision is unconstitutional. This leads to a weakening effect on the binding force and effectiveness of the Court's decision of incompatibility.

3. Dissenting Opinion of One Justice

In my view, if a private entity becomes main agent of the expropriation, it is hard to ensure profit from that expropriation is reverted to the benefit of the entire community and thus, expropriation by a private entity shall be constitutionally justified only after we establish such an elaborate systematic regulation that would guarantee the duration of public necessity of expropriation and revert the profit of such expropriation to the benefit of entire community. The instant case, however, lacks such elaborate systemic regulation, and thereby violates the principle of equality and infringes on the petitioners' property rights.

4. Dissenting Opinion of One Justice

Even though the Definition Provision prescribes sport facility as

coming under infrastructure without any conditions, such sport facility shall be one that serves the public interest, justifiably designated as a urban planning facility in course of deciding the specific urban planning facility project. If, a sport facility that lacks public interest is determined to be a part of the Project facilities, it is the decision process where the review and determination was erroneous that shall be redressed. Thus, it does not appear to me that the Definition Provision itself is unconstitutional.

Public necessity for the construction of a golf course which is open to members only cannot be considered to be significant. Therefore, in my view, the Expropriation Provision that grants the authority of land expropriation to private entities that construct golf courses for members only, violates Article 23 Section 3 of the Constitution.