Constitutional Complaint of Local Government Head RespectingHot Spring Development Plans

[20-1(A) KCCR 453, 2004Hun-Ba44, April 24, 2008]

This case involves a complaint of constitutionality filed by head of Gun, local government, over Article 2 of the old Hot Spring Act (Hereinafter the "HAS"), which defines the term "hot spring", and Article 7, Section 1 of the same Act which allows the persons with priority over utilization of hot springs to devise and apply for approval of development plans in case the head of Si/Gun neither devises the plan nor conforms to orders of the Mayor or Do governor to devise a plan. The Constitutional Court found that government offices are also qualified to file for constitutional complaints of Article 68 Section 2 of the Constitutional Court Act, but that the above provisions are in no violation of the Constitution.

Background of the Case

Article 2 of the old HSA (before revised by Act No. 6119, January 12, 2000 and Act No. 6390, January 26, 2001) defines the term "hot spring", and the proviso of Article 7 Section 1 of the same Act prescribes that persons having priority over utilization of hot spring may devise and apply for approval of hot spring development plans in case the head of Si/Gun fails to devise the development plan and comply with the order of the Mayor/Do governor.

The head of Uljin-gun, (herein after, the "petitioner") who is obligated to devise hot spring development plans under the law, failed to devise a development plan and to comply with the order of the head of Gyeongsangbuk-do (province) although the area of hot spring wells discovered in Uljin-gun was designated as a hot spring protection district. In response, the developer of hot spring given priority over utilization, in accordance with proviso of Article 7, Section 1 of the HSA, devised a development plan and applied for the relevant approval to the governor of Gyeongsangbuk-do. When the governor of Gyeongsangbuk-do rejected the said application, the hot spring developer filed an administrative lawsuit against the governor seeking cancellation of the rejection.

The petitioner participated the administrative lawsuit to support the governor of Gyeongsangbuk-do at the pending appeal, filed a motion to request for constitutional review of the provision of HSA to the ordinary court and, when denied, filed a constitutional complaint of this case.

Summary of Decision

In an unanimous opinion of Justices, the Constitutional Court declared the provisions of the old Hot Spring Act constitutional based on the following reasons:

1.Government offices, not being subjects of basic rights, are not eligible to file for a constitutional complaint of Article 68 Section 1 of the Constitutional Court Act, but a petition under Article 68 Section 2 of the Constitutional Court Act is a constitutional complaint of concrete norms control that does not require violation of basic rights and defines the petitioner merely as "the party who filed a motion to request for a constitutional review denied by ordinary court" in forming a case. In this regard, "the party" must be identified as all parties concerned with the case including the administrative suit, and there is no reason why only the government office that is the respondent of the suit should be excluded from "the party".

It is not tolerable under the principle of separation of powers that while taking administrative measure, the government office rejects to apply the relevant statute based on its own judgment that the pertinent provision is likely to be unconstitutional. However, since even the constitutionality of the pertinent provision as well as legitimacy and justification of the administrative measure is reviewed in trial, not only the party objecting to the administrative measure but also the government office taking the administrative measure is able to file a complaint on constitutionality of pertinent provision as constitutional complaints of Article 68 Section 2 of the Constitutional Court Act with the purpose of concrete norms control based on the supreme normative power of the Constitution.

2.What will be developed and protected as hot springs is to be

determined in policy according to legislative objectives pursued by the legislator in consideration of geographic and geological characteristics, supply of water resources, demand for hot springs, etc., and Article 2 of HSA that defines hot spring does not in itself cause arbitrary hot spring developments or resulting ill effects. Moreover, the Hot Spring Act and relevant regulations of its subordinate laws delegate diverse authorities to the government office needed for efficient development and usage of hot springs as state resources and minimizing negative effects of arbitrary developments. Therefore, Article 2 of HSA is compatible with the Constitution.

3.In case the head of Si/Gun fails to devise hot spring development plans, the Mayor/Do governor has to give orders to formulate plans within a given period of time. In case the head of Si/Gun fails to implement the order within a designated period of time, under the proviso of Article 7, Section 1 of the HSA which authorizes persons with priority over utilization of hot springs to devise and apply for approval of development plans, the Mayor/Do governor is able to promote appropriate development of hot springs by supplementing institutional frameworks by which the head of Si/Gun is monitored with respect to hot spring development plans. This is not a denial of authority of the head of Si/Gun to set development plans but granting the Mayor/Do governor the power to oversee the head of Si/Gun fulfilling his/her duties of setting development plans. Therefore, the proviso concerned cannot be considered as infringing upon the right to local autonomy of the head of Si/Gun.

The proviso of Article 7 Section 1 of the HAS gives preference to persons with priority over utilization to devise hot spring development plans over the head of Si/Gun, but such preference to devise development plans is given only when the head of Si/Gun fails to devise the development plan and comply with orders of the Mayor/Do governor, the head of higher-level local government body, and the development plan devised by the persons with utilization priority is required to obtain approval of the Mayor/Do governor. In that sense, the proviso in question is difficult to be viewed as violating the essence of the local autonomy system.

Significance of the Case

The decision of this case has clearly demonstrated that even the government office in charge of administrative measures can file a complaint of constitutionality on evidentiary statutes of administrative measures as a constitutional complaint of Article 68 Section 2 of the Constitutional Court Act. The decision is significant as it confirms that under the old Hot Spring Act, in case the head of Si/Gun fails to devise hot spring development plans and to follow the orders of the Mayor/Do governor, giving preference to persons with priority over hot spring utilization to devise and apply for approval of hot spring development plans neither infringes upon the right to local autonomy of the head of Si/Gun nor contradicts the foundation of the local autonomy system.