25.Imposition of Expenses for the Excavation of Cultural Heritage Case

[22-2(B) KCCR 41, 2008Hun-Ba74, October 28, 2010]

In this case, the Constitutional Court held constitutional the second and third sentences of Article 44 Section 4 of the former Cultural Heritage Protection Act which impose the expenses for excavation of cultural heritage on a contractor of construction project when the contractor carries out the excavation upon permission to excavate cultural heritage for construction project.

Background of the Case

Petitioner, a company that built horse racing tracks at the time, bore all the expenses for excavation when cultural heritage assets were found during the construction. As the construction site for the horse racing tracks was designated as a "historic site," however, it could not carry on with the construction project. So, the petitioner filed a lawsuit, requesting return of unjust enrichment amount to the expenses for excavating the cultural heritage against the State, and while the case was pending, filed a motion to request a constitutional review of Article 44 Section 4 of the former Cultural Heritage Protection Act (hereinafter, the Instant Provision) which is the ground for the imposition of expenses on the petitioner, claiming that the Instant Provision violates the rule against excessive restriction. The court, however, denied both the request for the return of unjust enrichment and the motion to request a constitutional review. Subsequently, the petitioner filed this constitutional complaint in the Constitutional Court.

Provisions at Issue

Former Cultural Heritage Protection Act (revised by Act No.4884 on January 5, 1995 but before revised by Act No.5719 on January 29, 1999)

Article 44 (Restraint on Excavation) (4) In case of Section 1, Item

2 or Item 3, the Minister of Culture and Sports may, when he deems it necessary to do so for the preservation of the cultural heritage, excavate it directly, or designate a person to excavate it.In this case, expenses for the excavation shall be borne by the person who carries out the excavation: Provided, that the expenses for the excavation during execution of such construction work as prescribed by the Presidential Decree, may be borne by the State or a local government within the limits of its budget.

Summary of the Decision

In an opinion of 7(constitutional):2(unconstitutional), the Constitutional Court declared that the Instant Provision is constitutional for the following reasons:

1. Majority opinion of Seven Justices

The Instant Provision in this case was enacted to protect buried cultural heritage assets from reckless excavation during execution of various types of development projects by imposing the expenses incurred in the excavation on the one carrying out a development project who may cause possible damage to cultural heritage during the construction project, and therefore, legitimacy of legislation and appropriateness of means of the Instant Provision are recognized. Also, the Instant Provision does not violate the rule against excessive restriction, considering the facts that (1) Risk of increased cost due to excavation is one that can sufficiently be taken into consideration during the stage of project planning or the process of procuring business capital; (2) that the one who executes a development project has an option to choose not to proceed with the project whenever deciding that it cannot afford to the expenses for excavation; and (3) that there is a relaxed provision by which the expenses for the excavation during execution of such construction work as prescribed by the Presidential Decree may be borne by the State or a local government.

The third sentence of the Instant Provision does not restrict people's

fundamental rights but relaxes the burden imposed on the one carrying out a development project that should bear the expenses for excavation in principle, bestowing benefit to those who are subject to the Instant Provision. As overall circumstances, such as government budget, economic ability of each local government, the effect on development project and etc., should be considered in deciding the scope to which the benefit is given, there is not enough basis to conclude that the scope should only be prescribed by an Act legislated by legislators. As it is clearly possible to predict the inherent scope of delegation or limitation of a delegated provision when determination of a specific scope of subsidizing expenses for excavation is delegated to an enforcement decree, the Instant Provision does not violated the rule against blanket delegation.

2. Opinion of Unconstitutionality by Two Justices

According to the Instant Provision in this case, the one that carries out a development project should bear the expenses for excavating cultural heritage assets buried under the construction site even when no permit to excavate cultural heritage is granted to it and such excavation is carried out directly by the State or its agent due to the necessity to protect cultural heritage. It is constitutionally acceptable that if necessary, no permit to excavate cultural heritage is granted to the one who carries out a development project and such excavation is carried out directly by the State or its agent due to the necessity to protect cultural heritage because such a provision is for the fulfillment of State's duty to protect cultural heritage. Burdening the expenses for such excavation on the one that carries out development project, however, is in violation of the Constitution, as it imposes unreasonable financial burden on it and thereby infringes on its property right.

The one carrying out a development project is not benefited by State's excavation of cultural heritage from a construction site at all. In fact, the one carrying out the development project is just disadvantaged by State's excavation as it should suspend the construction work which hampers the excavation by the State. Moreover, the benefit achieved by excavation of cultural heritage belongs to the State, not to the one who carries out a development

project. Therefore, as it is the State that is supposed to bear the expenses for excavation of buried cultural heritage and imposing such financial burden on the one carrying out a development project cannot be considered necessary or reasonable, the Instant Provision lacks legitimacy of legislative purpose and appropriateness of means.

Although a provision of the former Cultural Heritage Protection Act stipulates that, when the buried cultural heritage assets escheat to the State, the Minister of the Culture and Sports shall pay indemnity to the discoverer or finder of the cultural heritage asset and the owner of the land, etc., and any expenses that have been disbursed in discovery and finding of the cultural heritage is to be taken into account, that is not enough. Therefore, the Instant Provision fails to meet the standard of principle of least restrictive means on the property right.

In case the lawful owner of the excavated cultural heritage is not found, the relevant cultural heritage in need of a direct preservation of the State shall be reverted to the State, not to the one who carries out a development project. Therefore, the Instant Provision, which imposes all the financial burden of excavation of cultural heritage on the one carrying out a development project, also loses balance between legal interests in restricting the property right as it unilaterally scarifies the one carrying out a development project in order to protect cultural heritage.