Constitutional Complaint against Article 21 of the Urban Planning Act

[10-2 KCCR 927, 89Hun-Ma214, etc.,(consolidated),

December 24, 1998]

Contents of the Decision

1. Social accountability1)of the right to real property;

2. The nature and limit on restriction of one's right to real propertyby designation as a development-restricted zone(namely, the GreenBelt);

3. The standard of limiting the social restriction on the right to real property;

4. Whether the fall in the land price, caused by the development-restricted zone designation, is justifiable as the result of the socialrestriction inherent in the right to real property;

5. Constitutionality of Article 21 of the Urban Planning Act;

6. The reason and meaning of the decision of nonconformity to theConstitution;

7. The meaning and legal nature of a compensation statute.

Summary of the Decision

1.The constitutional right to property does not mean a guar-antee of the land owner's right to make all possible uses of the landto the maximum extent or to use it most economically or efficiently.The legislature can limit certain uses of the land for reason of im-portant public interest. Development of and improvement on the landis permitted within the content and extent of the right to propertydetermined by statutes conforming to the constitution. The right toreal property can be imposed heavier obligations and duties than otherproperty rights because of its strong social or public nature.

2.Article 21 of the Urban Planning Act, which designates adevelopment-restricted zone and bans construction therein, specifiesgenerally and abstractly the rights and duties associated with the rightto real property according to Article 23 (1) and (2) of the Constitu-tion. It creates the right to real property and at the same time con-cretizes the social restriction of that right imposed by the mandateof public interest.

Although the right to real property can be imposedheavier obligations and duties than other property rights because ofits strong social or public nature, the restricting statute must abide bythe principle of proportionality, like statutes restricting other basicrights, and must not deny the essential content of the right to prop- erty, namely, the right to use, profit from, and dispose of the land.

3.The development-restricted zone designation may make it im-possible to use the land as it was used previously or may not leaveany feasible use, effectively eliminating all venues to use or profitfrom it. Such designation exceeds the limit of the social restrictionthat the landowner must accept.

4.Elimination of development opportunities and the resulting de-crease in the land price or the relative slowing of the price increasedoes fall under the social restriction that the landowner must en-dure. The expectation that one could use his or her land for con-struction or development in the future or take advantage of the in-crease in the land price does not belong in principle to the protectedextent of the right to property. As long as the landowner could use,profit from, or dispose of the land in the original condition before thedesignation, the designation does not exceed the limit of the socialrestriction that the landowner must accept.

5.The restriction on the right to property by Article 21 of theConstitution, as long as it allows the original use of the land, ismerely a constitutional concretization of the social limit inherent inthe right to property, which is consistent with the principle of pro-portionality. If the provision makes such original use impossibleand makes any other feasible use or profiting of the land impossible,and yet does not provide compensation, it violates the principle of pro-portionality and excessively limits the landowner's right to property.

6.The development-restricted zone system in Article 21 of theUrban Planning Act is in principle constitutional. However, it be-comes possibly unconstitutional when it imposes a cruel burden ex-ceeding the scope of social restriction on the landowner without any compensation provision. The concrete standard and method of com- pensation should, by nature, not be determined by the ConstitutionalCourt but determined as a matter of policy by the legislature with thebroad legislative-formative power. Until the legislature cures theunconstitutional status of law by making a compensation statute, weleave the above provision formally valid on a decision of noncon-formity. The legislature has a duty to eliminate the unconstitutionalelement of the statute as soon as possible. The administrative agen-cies should not designate a new development-restricted zone until the legislature enacts the compensation statute. The landowner can waitfor enactment of the compensation statute and exercise his or herright pursuant to it, but

cannot contest the designation itself or the effect of the use restriction or justify his or her conduct violative of the restriction.

7.The legislature, in order to make the limitation on people'sright to property conform to the principle of proportionality, mustprovide for a compensation provision that will alleviate the cruelburdens that the limitation may impose on them. The compensationprovisions are required for regulating the right to property for reasonof public interest and concretely forming the content of the right toproperty in Article 23 (1) and (2). Monetary compensation is not the only means to recover the proportionality between the public interestand the restriction on the right to property. The legislature maychoose alternative means such as releasing the properties from thedevelopment-restricted zone designation, setting up the system ofpetitioning the state to purchase the properties, and other means ofameliorating the loss.

Dissenting opinion of Justice Cho Seung-hyung

The majority's nonconformity decision violates the explicit pro- visions of the Constitution in Articles 111 (1) and (5) and the Con-stitutional Court Act in Articles 45 and 47 (2). It arises out of aconfusion between the German system based on the retroactive effectof an unconstitutionality decision and the Korean system based onits prospective effect, and the resulting, uncritical adoption of Germanprecedents. This case should be decided on a simple decision ofunconstitutionality.

Dissenting opinion of Justice Lee Young-mo

1.All people have the right to environment (Article 35 of theConstitution) whereby they can live in a healthy and pleasant en- vironment. That right is fundamental to realization of the humandignity and value and the right to pursuit of happiness. The righttakes precedence over the economic liberty of exercising the right to private property.

2.Article 21 of the Urban Planning Act is a regulatory leg-islation necessary for the prevention of environmental pollution harmfulto national security and the preservation of the city's natural sur-roundings and its living area, and is therefore constitutionally valid.This regulatory provision may limit the use of bare building lots, working together with the change in the circumstances, and mayinterfere with the use of other properties, but it permits alternativeuses that do not discord with its legislative intent and does not limitthe owner's right of

disposal. Such regulation is by nature a social limitation inherent in the right to property. In balancing the inter- ests, the disadvantages to the property owner are small compared to the contribution to national security and public welfare. The Act isalso reasonable and necessary for accomplishment of those legisla-tive purpose, therefore not departing from the requirements for re-stricting basic rights stated in Article 37 (2) of the Constitution.Furthermore, bare building lots and the property subject to redes-ignation, compared to other properties within the restricted zone, arenot discriminated unreasonably. Hence no violation of the principleof equality.

Parties

Complainants

1. Bae Ok-sup and two others (89Hun-Ma214)

Counsel of record: Jang Gi-wook

2. Lee Byung-gwan (90Hun-Ba16)

Counsel of record: Donghwa Legal Corporation,

Attorney in charge: Lee In-soo and three others

3. Lee Chung-hyung and three hundred and thirty four others (97Hun-Ba78)

Counsel of record: Lee Jin-woo

Designated parties: Lee Chung-hyung and 15 others

Original Cases

1. Seoul High Court 89Gu1928, vacation of the order to demolish (89 Hun-Ba214)

2. Supreme Court 89Nu770, vacation of the order to demolish (90Hun-Ba16)

3. Seoul District Court 96Ga-Hap90820, damages for loss (97Hun-Ba 78)

Holding

Article 21 of the Urban Planning Act (enacted January 19, 1971by Act No. 2291, and revised December 30, 1972 by Act No. 2435) is nonconforming to the Constitution.

Reasoning

1.Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) 89Hun-Ma214

Complainants Bae Ok-sup, Kim Sung-bok, and Kim Young-soobuilt a building without governmental approval between 1978 and 1980 on a development-restricted zone, designated by Notice No. 385 of theMinistry of Construction. When the Inchon Suh-gu District Headordered the building demolished, pursuant to the Urban Planning Act(enacted January 19, 1971 by Act No. 2291, revised December 30, 1972by Act No. 2435; the "Act", hereinafter), the complainants soughtvacation of the administrative order in the Seoul High Court (89Gu-1928). Then, the complainants requested constitutional review ofArticle 21 of the Act. When the denial of the requested was deliv-ered on Sep. 5, 1989, they filed this constitutional complaint on the19th of the Month.

(2) 90Hun-Ba16

Complainant Lee Byung-gwan built a building without govern-mental approval on a development-restricted zone around 1982, des-ignated by Notice No. 385 of the Ministry of Construction. When theInchon Buk-gu District Head ordered the building demolished, thecomplainants sought vacation of the administrative order in the SeoulHigh Court (88Gu2894) but was denied. The complainants appealedto the Supreme Court (89Nu770) and then sought constitutional reviewof Article 21 (1) and (2) of the Act. When denied the request onMay 8, 1990, he filed this constitutional complaint.

(3) 97Hun-Ba78

Complainants enumerated on List 3 of the Attachment own prop-erties within the areas designated for development restriction by theMinister of Construction and Transportation pursuant to Article 21of the Act between July 30, 1971 and December 4 of the same year.The complainants designated the complainants enumerated on List 4of the Attachment as the designated parties. The designated partiessought compensation for the loss caused by the development-restrictedzone designation in the amount of three hundred thousand wons per complainant in the Seoul High Court (96Ga-Hap90820). Pending thetrial, the designated parties requested constitutional review of Article21 of the Act. When they were denied in the request on October 1,1997 (97Ka-Gi3279), the complainants filed this constitutional com-plaint.

B. Subject Matter of Review

The subject matter of review is the constitutionality of Article21 of the Urban Planning Act (enacted by Act No. 2291 on January19, 1971 and revised by Act No. 2435 on December 30, 1972) ("theinstant provisions", hereinafter) and its content is as follows:

Article 21 (designation of development-restricted zone)

(1) Minister of Construction and Transportation may designatean area in which urban growth is restricted (hereinafter, "development-restricted zone") in order to prevent disorderly urban expansion, pre-serve the natural surroundings, and obtain a healthy living space forthe citizens, or upon request of Minister of Defense that urban de-velopment needs be limited for a security purpose.

(2) Inside the development-restricted zone designated pursuant to Section1, there shall not be any construction or structure erected,any change in the quality and form of the ground, any subdividing,or any urban planning activity. Provided, those who had commencedconstruction or a project under a proper approval (including when nosuch approval is required) may continue as specified by presidentialdecrees.

(3) The conduct restricted under Section 2 and other mattersnecessary for development restriction shall be determined by the de-crees of Minister of Construction and Transportation within the scopeof the presidential decree.

2.Arguments of Complainants and other interested Parties

A. Complainants' Arguments

(1) Any restriction on people's right to property must be spe-cified by statute and the authority cannot be delegated to other stateagencies. The instant provisions do not designate the development-restricted zones by statute but delegates the designating authority tothe Minister of Construction and Transportation and its ministerialdecrees. Hence a violation of property right in Article 23 of the Con-stitution. Furthermore, the phrase "prevent disorderly urban expan- sion" in Article 21 (1) is vague in its meaning, and the phrase "pre-serve the natural surroundings of a city and obtain a healthy living space for the citizens" is excessively broad and vague, violating theConstitution.

(2) In development-restricted zones, building lots and miscella-neous use areas can be regulated through normal urban planning pro-cedures such as designating them under scenery-regulated areas.Farmlands, instead of being swept under a complete ban, should beapproached through regulation of using and selling from the perspec-tive of responding to the changing conditions of farming and using the nation's land resources efficiently. Forests can be designated as a natural park area or a green area to preserve the green environ-ment, thereby

preserving and beautifying the natural environment whileincreasing the disposable land. However, a development-restrictedzone, unlike normal urban planning restrictions, operates as a com-prehensive ban on the activities concerning the land or surface struc-tures and allows only those activities restrictively permitted by thedecrees of the Ministry of Construction and Transportation. There- fore, Article 21 of the Act violates the essential content of the rightto property, and restricts a person's property right too excessivelyin violation of Article 37 (2) of the Constitution.

(3) Article 23 Section 1 of the Constitution protects people'sright to property, and Section 3 requires any regulation of the rightto property necessary for a public purpose to be justly compensatedthrough statutes. As we saw above, the restriction on the use ofthe land inside the development-restricted zone is tantamount to aspecial sacrifice calling for compensation for the loss. However, theAct does not have any compensation provision for the loss causedby development-restricted zone designation under Article 21. There-fore, Article 21, which restricts property right without compensation, violates Article 23 (1) and (3) of the Constitution.

(4) Due to the restrictions on changing the surroundings or theliving environment, the landowners are forced to move out ofdevelopment-restricted zones. When their financial resources arelimited, they may not even be able to sell at a reasonable price in atimely manner. Hence their right to travel and choice of occupa-tions are limited, as well. Therefore, Article 21 violates thedevelopment-restricted zone residents' freedom to move one's resi-dence and freedom to choose one's occupation guaranteed underArticles 14 and 15 of the Constitution.

(5) As shown above, the instant provisions infringe on the prop-erty right of the owners of the land designated for a development-restricted zone without reasonable basis, and also violate only its residents' freedom of moving one's residence and choosing one'soccupation, violating their right to equality of Article 11 of the Con- stitution.

B. Ordinary Courts' Reason for Denying the Request

for Constitutional Review

(1) Seoul High Court's Reason for Denial (89Hun-Ma214)

The restriction in Article 21 of the Act is pursuant to Article23 (2) of the Constitution requiring that any exercise of the right toproperty be consistent with public welfare and is a general restric-tion that falls within the scope of the restriction inherent in theright to property itself. It is imposed on all uniformly and is not a special sacrifice on

some people. Therefore, it needs not be subjectto a condition of loss compensation. The instant provisions do notviolate Article 23 (3) of the Constitution for reason of not providing for compensation.

(2) Supreme Court's Reason for Denial (90Hun-Ba16)

Article 21 (1) and (2) do substantially restrict the landowners'property rights inside the development-restricted zone and do causespecial harms in comparison to other property owners. However,the restriction is limitedly applied only "in order to prevent disor-derly urban expansion, preserve the natural surroundings, and obtaina healthy living space for the citizens, or upon request of Ministerof Defense that urban development needs be limited for a securitypurpose". Therefore, it is a reasonable restriction consistent withpublic welfare, and the property owners' loss is an unavoidable con-sequence to be endured for the sake of public welfare. Therefore, Article 21 (1) and (2) do not violate Articles 23 (3) or 37 (2) of theConstitution for not providing for loss compensation.

(3) Seoul District Court's reason for denial (97Hun-Ba78)

The restriction here does not violate the essential content of theright to landownership. It depends upon the location and functionof each property and is therefore not an unfair discrimination againstthem. As long as such restriction on the right to landownership iswithin the permitted scope of social regulation, the provisions do notviolate the Constitution for not having compensation provisions.

C. Opinions of the Ministry of Construction and

Transportation and the Ministry of Justice

(1) The "prevention of urban expansion" specified in the instantprovisions means prevention of horizontal expansion and thereforedoes not limit heightening of the buildings. The purpose of suchrestriction is aimed at preventing traffic or water supply problemsthat arise out of expansion of a city, preserving healthy farming anda city's natural surroundings, leaving some lands unused inside thecity, and making the urban space for disaster prevention. The pro- vision interpreted thus is not vague.

(2) The development restriction does not ban constructing activ-ities entirely but prohibit only population-attracting facilities, fac-tories, commercial facilities, and other urban constructions in order toprevent unlimited expansion of the city and preserve the environ-ment. Aside the restriction, all other uses are freely allowed aslong as permitted by other statutes and regulations. Improvementof an preexisting

building and expansion of a residence or a factoryare allowed as a matter of principle. It does not infringe on theessential content of landownership and the extent of the infringe-ment does not violate the rule against excessive restriction or theprinciple of proportionality.

(3) Development-restricted zone designation does not constitutea violation on the essential content of the right to property. It is arestriction that falls under the social limit that landowners mustaccept for the sake of improving public welfare pursuant to Articles23 (2) and 122 of the Constitution, and therefore does not give riseto the issue of compensation. Development-restricted zone designationis done as an aspect of urban planning that designates areas forother uses, and does not interfere with the primary functions of the property right, namely, to use, profit from, and dispose of. It limits only the activities that significantly depart from the purpose of thedesignation, allowing continuation of the residents' daily activities,their making of living, and other preexisting activities that do notviolate the purpose of the designation. The land covered by urban planning accounts for only 13.5% of the national land, but the landcovered by development-restricted zones adds up to 5.5%. Thesenumbers bespeak of the fact that development-restricted zone des-ignation does not cause any special loss on the landowners, andtherefore the designation is not unconstitutional for reason of notbeing compensated.

3. Review

A. History and Problems of Development-restricted

Zone Designation

(1) The Urban Planning Act originally regulated creation andimprovement of a city and was aimed at healthy growth of a cityand increase of public welfare. It was enacted by Act No. 983 onJanuary 20, 1962, and regulated all matters covered by Imperial OrderNo. 18 Chosun Urban Street Planning Order of June 20, 1934 except construction.

After the Act was enforced, the government's strong industri-alization policy and the consequent thickening of industrial structuresconcentrated the population around cities and their peripheries, causing rapid urban expansion and urban problems that could not be addressedby the preexisting laws. In order to set up a urban plan that couldsolve these problems, regulate its details, prevent urban over-concentration or over-growth, obtain empty space needed for creationof a urban environment, and finally protect the private rights, weneeded a new urban planning law and the new Urban Planning Actwent through total revision on January 19, 1971 by Act No. 2291.

The provisions on development-restricted zoning were newlyintroduced at the time of the total revision for the purpose of pre-venting disorderly urban expansion, preserving the natural surround-ings of a city, and uphold national defense, and was once revised on December 30, 1972, by Act No. 2435.

Development-restricted zones were gradually expanded in eightphases between July 30, 1971 and April 18, 1977. The land thusdesignated accounted for 5.4% of the national land and amounts to5,397.1 ㎢. After that, only the restrictions on the conduct werechanged partially. There was no further expansion or change of the zones. Inside the zones, one million people live at the moment.

Many problems follow unplanned and disorderly urban expansionand they are not unique to us but a trans-national problem faced by many countries. In order to preserve and maintain a pleasing urbanenvironment, they are putting into effect their own urban planningand urban-regulatory laws and policies. Among them, the UnitedKingdom separated the right of development from that of ownershipand made it a public property. Therefore, all constructing activitiesabove or beneath the ground and all substantive changes in the usesof the buildings were allowed only upon governmental approval.Also, certain areas were designated as 'Greenbelt' in order to limitexpansion of city streets and protect the suburbs, within which de-velopment was strictly limited. This system is very similar to ourdevelopment-restricted zoning.

(2) Development-restricted zoning contained horizontal expansionof the cities during the high growth periods of 1970s and '80s andcontributed to preservation of little green areas remained around Seouland other major cities. It reserved some lands around the city forfuture development, making possible a long-term plan to meet the future land needs and thereby making a significant contribution tothe healthy growth of the cities.

Suspending or relaxing the development-restricted zoning withoutany alternative plan will cause land speculation, and will result inoverly rapid development of the affected area and mass population influx, bringing about serious side-effects from an urban-environ-mental perspective.

On the other hand, development-restricted zoning bans thosebuildings that violate the designation, causing inconvenience in the lives of the residents. It also extinguishes development opportuni-ties and brings down the land prices relatively or slows the increasetherein, restricting the particular landowners' property rights. An issue has been raised that, whoever caused or benefited from suchdesignation does not carry any cost and rides free on others' sacri- fice, violating fairness and the principle of fair allocation of costs, amandate of social

justice. Furthermore, the zoning was done withoutthorough advance surveys and evaluations and ended up surrounding the developed areas at the time of the designation. In case of somesmall to mid-size cities, the zones are too big, undermining soundurban growth and interfering with the balanced development of thenational land.

Despite many changes since the time of the designation, thezones were not revised. The increased demand for land was met not by developing the usable land within the zone at cheap costs, but bydeveloping forested or green areas for reason that they are outsidethe zone and even by filling the silt area.

B. Violation of the Right to Property

(1) Protection of the right to property and the social account-ability inherent in the right to real property

(A) The Constitution states, “all people's right to property areguaranteed. Their contents and limits are prescribed by statute”,“exercise of the right to property shall conform to public welfare”(Article 23 (1) and (2)), subjugating property rights and exercise ofthem to statutory restriction.

Property rights, before being recognized and protected by a legalorder, must be formed by the legislature. In other words, the rightto property, in absence of formative statutes, exists only as factualdominion over the objects, and, unlike other basic rights, earns itsright-like status only by becoming concretized through statute. Thelegislature, in forming the content of the right to property concretelythrough statute, must consider together the constitutional guarantee ofthat right (Article 23 (1)) and the public interest and other elementsof the social accountability inherent in that right (Article 23 (2)),and adjust the two interests to achieve a harmony and balance.

(B) On the other hand, the right to property in reality forms theeconomic conditions that the people, as the subjects of basic rights,need for autonomous realization of humane livelihood. Therefore, theright to property forms the material basis for realization of individualfreedom. Freedom and right to property are complementary and in- separable. The freedom-guaranteeing function of the right to prop-erty is an important standard in setting the limit of its socially boundnature, namely, how much the right to property can be restricted.

The permitted scope of restriction on the right to property de-pends on the meaning that the object of that right holds to its sub-jects individually, and also to the society as a whole. The more so-cially

bound the object is and the more important its function is, themore broadly legislative restriction is permitted. In other words, ifthe use or disposal of a specific property right does not remain in thedomain of the owner's personal life but influences the lives of many,the legislature has a broader authority to regulate that individual'sproperty right for the sake of the interest of the community.

(C) The right to land ownership is a right to own a particular portion of the space continuum. The value of each property is de-termined by the social circumstances of its location, and its use mustbe subject to a requirement that it be harmonious with the use ofits neighboring property.

However, land cannot be produced or substituted and has a lim-ited supply. The disposable land is in an absolute shortage in com-parison to the population. All people depend their production or livingupon reasonable use of the land. Its social function and national eco-nomic implications require that the right to landownership be treateddifferently from other property rights and built in it the stronger ele-ment of public interest. (1 KCCR 357, 88Hun-Ka13, December 22, 1989)

The Constitution considers the above said feature of land instating, “The state may impose on land, by statute, those restric-tions and obligations that are necessary for efficient and balanceduse, development and preservation of the national land, the basis forall people's production and living” (Article 122), granting the legis-lature a broad legislative-formative power.

(2)Restriction on the Right to Landownership by the InstantProvisions

(A) Development-restricted zoning pursuant to the instant provi-sions is a part of the land use plan that results from urban planningcarried out on urban areas, and a form of restriction on land usethat operates through designation of the areas for certain uses. Theinstant provisions ban all building, structures, change in form andquality of the ground, subdividing, and urban planning activities fromdevelopment-restricted zones, except the activities begun pursuant togovernmental approval prior to the zone designation, which are notconsistent with the zone designation (Article 21 (2)).

(B) Articles 17 and 18 of the Act specify 'use areas' or 'usedistricts' whereby all land uses are allowed except enumerated onesthat violate the purpose of the designation. The instant provisionsinstead flatly ban all uses except the ones maintaining or improvingupon the status quo, constituting a much severer limitation on con-duct. The purpose of development-restricted zoning is to limit urbandevelopment (Article 21 (1)). It is hard to imagine any constructingactivity that does not violate the designation purpose. Therefore,the land inside the zone

is subject to a strict limitation that only thepreexisting uses can be continued.

However, the land can be used in the same manner as at thetime of the designation. Therefore, what is restricted is one part ofthe right to landownership, namely the right of use. All uses, ex-isting at the time of the designation, are in principle permitted con-tinued, and all improvements on the preexisting uses are exception-ally permitted. Only future uses in violation of the designation pur- pose are banned.

(3) Constitutionality of the Instant Provisions

(A) The legislature, through the instant provisions, determine therights and duties vis-à-vis the right to landownership in abstractand general terms. The provisions determine the content and limit of the right to property to be protected by a legal order, and con-cretize the social limit in the right to property mandated by publicinterest (Article 23 (1) and (2) of the Constitution)

The constitutional right to property is not meant to guaranteefor the owner the maximum possible, the most economic or the mostefficient use. The legislature may regulate use of each piece of land in light of its special features for reasons of important public interest.Therefore, development or building upon land is possible only withinthe scope and limit of the right of property demarcated by statutesconforming to the constitution. Due to the strong social and publicnature of the right to landownership, heavier restrictions and obliga-tions can be imposed on it than on other property rights. However,the statutes restricting the right to landownership must abide by therule against excessive restriction (principle of proportionality) andmust not extinguish the essential content of that right, namely theright to use, profit, and disposal.

A concrete means to achieve public interest must have a legiti-mate purpose and must conform to the principle of proportionality,the mandate of the rule of law. In other words, the means chosen bythe legislature must be appropriate for accomplishing and facilitatingthe legislative purpose (appropriateness of means) and be least re-strictive of basic rights among the equally appropriate means to ac-complish the legislative purpose (minimum restriction). Finally, theremust be an appropriate relationship of proportionality between the extent of restrictions on basic rights and the weight of the publicinterest accomplished (balancing of interests).

(B) Then, we shall in turn examine whether the above princi-ples were complied by the instant provisions.

1) Normal situations where land can be used in the preexistingway after the designation

The landowner can continue use the land in the same manner

despite the zone designation. According to the regulations of theAct, the properties already developed at the time of the designationcan be expanded or renovated. The instant provisions impose on thelandowners a duty to maintain the status quo and a duty not tochange, and otherwise allow them to continue using the land as theywere before. Therefore, they set the content and limit of the rightto property consistently with the principle of proportionality. Weshall examine the issue in more detail below:

A) Legitimacy of the legislative purpose

Containing a city's horizontal expansion, controlling its functions, preserving its natural surroundings, and thereby improving the qualityof life of the citizens, is a mandate of universal public interest andalso a duty of the state. On the other hand, the need to limit devel-opment in certain areas for national security purposes cannot be deniedin light of the current state of the sharp South-North division.

Therefore, the restriction on the right to landownership by thedevelopment-restricted zoning is a response to the mandate of publicinterest, and it has a legitimate legislative purpose.

B) Appropriateness of means, minimum restriction, balancing ofthe interests

The instant provisions, as a matter of principle, enacts a com-prehensive ban on all buildings, structures, changes in form andquality of the ground, subdividing, and urban planning activities thatdepart from the designating purpose (Article 21 (2)) and no doubtcontribute greatly to the accomplishment of the legislative purpose.The instant provisions are an appropriate means.

Complainants, however, argue that they are an overly restrictivemeans because the laws on farm land preservation and use, naturalparks, or forestry, or the 'area' or 'district' designation under theUrban Planning Act can accomplish the goal of containing urban-ization. A development ban by district designation, goes beyond thesealternatives and is an excessive restriction on the right to use theland. They argue, they are not an appropriate means. However,the purpose of the development-restricted zoning is to preserve theshape, form, and use patterns of the land at the time of the desig- nation and thereby suppress its urbanization. A selective, partial, or exception-making restriction cannot be expected to achieve the pur-pose efficiently. The instant provisions' comprehensive ban is theminimum necessary for accomplishment of the legislative purpose.

Land is our workplace and living space. Landownership servesan important social function. Obtaining healthy living space for urban residents, the majority of the people, and national security are weightypublic interests. Guaranteeing the landowners the continued use ofthe land

and banning merely a new development are not excessiveor unilateral against them but fall within the scope of the social limitthat the landowners must endure.

Therefore, the instant provisions satisfy a relationship of propor-tionality between the public interest to be accomplished and the ex- tent of the restriction on the right to landownership on balance.

C) Finally, evaporation of development opportunities, and the re-sulting fall in prices or the relatively slow increase in the prices, alsofall under the social limit to be borne by the landowners. Expec-tation of or confidence in the possibility of developing one's ownland for future construction or development and the related rise inthe land prices are not within the protected area of the right to prop-erty. As long as the landowners can use, profit from, and disposeof the land in the manner that it was at the time of the zone des- ignation, simple restriction on the use does not go beyond the sociallimit inherent in the right to property. There is no cruel burdenthat goes beyond this inherent limit.

D) However, even if the restriction on the right to landowner-ship arising out of the zone designation is within the scope of thesocial limit inherent in the constitutional right of property, the zonedesignation will violate fairness and the mandate of social justice ifit does not impose any burden on the residentswithinthe city whobenefit from it and yet imposes all the burdens on the landownersinside the zone. In order to ease the burden on the landowners insidethe zone and restore fairness, it is desirable to grant them variousbenefits such as tax credits and recover the development profit from the beneficiaries.2)

2) Exceptional situations where land cannot be used in the pre- existing way or cannot be used in any way

A) However, it is different when the zone designation fore-closes the preexisting use of the land or nearly all uses to amountto forfeiting the right of use and profit. In that situation, the bur-den more cruel than can be justified by the socially bound nature ofthe right of property imposed on the landowners, and is constitu-tionally permissible only when the legislature ameliorates its effectsby providing for compensation.

Therefore, although the instant provisions in principle aim to concretize constitutionally the social limit inherent in the right tolandownership, they are unconstitutional when they overly burden thelandowners without any compensation, exceeding the scope of the so-cial limit. In this situation, the legislature must enact compensationprovisions for the special burden in order to satisfy the principle ofproportionality

and thereby cure the constitutional defects of thestatute.

B) A question of when the special property loss above and be-yond the social limit inherent in the right to landownership arise can-not be determined by a uniform rule but through comprehensive reviewof the objective conditions of the land (the classification under theofficial records, the actual conditions of the land). However, thefollowing two perspectives are generally important:

Firstly, whether the land can be used for the previously legaluse. The constitutional guarantee of the right to property, most ofall, protects the landowners from a change in the legal order thatmay otherwise suddenly destroy or decrease the value they had addedor created on the land in reliance on the preexisting legal order. Ifthe new law bans the preexisting use, the right to the previously per-mitted use must be able to maintain itself against the new provision attempting to change the use of the land. Therefore, the legislature cannot foreclose the preexisting use without compensation. In other words, the legally permitted use of the land constitutes the conditionof the land. Its location and natural condition do not bind the con-dition of the land. The landowner's right of property is the right tothat condition. Therefore, when the previously permitted use of theland is banned, such ban exceeds the social limit that all people mustaccept.

Secondly, if the restriction forecloses all possible uses of the landand effectively forfeits the right of use and profit, it has caused aspecial property loss beyond the permitted scope. If a landowner doesnot have any meaningful private use of the land, the land belongs tohim only in name but is effectively cut off from his ownership. Suchrestriction exceeds the social limit to be borne by all people.

In sum, if the zone designation forecloses the preexisting uses orall possible uses effectively blocking all the venues to use or profitfrom the land, the ownership remains only in name and becomes vac-uous. Such result exceeds the social limit that the landowners must accept.

C) Using the above standard, the following illustrations showwhen special property loss takes place.

① Bare building lots

Those properties classified as bare building lots at the time ofthe zone designation cannot be developed at all, even in a way con-sistent with the preexisting classification and the conditions of theland. The land-related official records that classify a property as a building lot already gave rise to the landowner's right to use it as a building lot. And the present condition of the land at the time ofthe zone designation is consistent with such classification, i.e., it wasleft bare for future construction. Then, the right to use it for thatpurpose cannot be confiscated without compensation. In this case,the zone designation

itself imposes an effective forfeiture on thelandowner's right to use the land at all. Unlike other lots that canbe used as previously used, this case presents a burden exceedingthe scope of the social limit inherent in the right to land ownership.

② Forfeiture of the preexisting use due to the change in thecircumstances

The land previously used for farming may no longer be able touse for the same purpose after the zone designation because the con-sequent urbanization of the surrounding area may have polluted thefarm or blocked irrigation routes. In the sense that the preexistinguse is impossible or has become significantly difficult, the situationgives rise to an equally cruel burden as in the case of bare buildinglots. Even after the zone designation brought about changes in the surrounding area and made it impossible to continue the preexistinguse, the change in quality or form of the land is in principle banned under the statute.

3) Sub-conclusion

Finally, the instant provisions' restriction of the right of prop- erty is a constitutional, and proportional concretization of the sociallimit inherent in the right of property so long as it allows the con- tinued use of the land consistent with the original land classificationand conditions. However, if it bans such use or is so exceptional asto effectively forfeit the right of use and profit, it violates the prin-ciple of proportionality and excessively abridges the landowner's rightof property.

Therefore, the legislature, in order to make the instant provi-sions constitutional, must enact compensation provisions to addressthe exceptional situation and alleviate the cruel burden exceeding thepermitted scope. Such compensation provisions are necessary pro-visions when the legislature forms the content of the right to prop-erty and regulates it for the sake of public interest in accordancewith Articles 23 (1) and (2) of the Constitution.

The means to restore the proportionality between public interestand the infringement on the right to property does not have to bemonetary compensation. The legislature may release the land from the zone designation, grant the landowners the right to request thestate to purchase the land, or use other means to alleviate the loss.The legislature has a broad freedom of formation in choosing the ap-propriate 'means' to accomplish the 'end' of adjusting or alleviating the cruel burden.

C. Violation of the Right to Equality and etc.

(1) The extent of restriction vis-à-vis the zone designation variessignificantly from one landowner to another depending on "whetherthe

land can be used for the purpose for which it was classified andconsistently with its conditions." The instant provisions uniformlyrestrict all landowners without any compensation. They violate theequality principle requiring 'treating equals equally and unequals un-equally', which in this case would require accommodating the excep-tional situations that require compensation and taking into the varyingdegree of property loss for each landowner.

(2) Complainants also argue that the instant provisions use con-cepts that are too broad and vague in relation to their legislativepurpose. However, the legislative purposes can be easily interpretedfrom the instant provisions, i.e., to suppress land use in a city's cer-tain peripheral areas, contain the city's geographical and horizontalexpansion, preserve the natural surroundings in the areas, and main-tain a healthy living space for its residents. From this, one can ob-tain an objective standard that excludes administrative authorities'arbitrary application of law. Hence no violation of the rule of clarity.

Also, complainants argue that the instant provisions leave the zone designation to administrative authorities and therefore violateArticle 23 of the Constitution. However, as said above, the stand-ard is clear for administrative or judicial application of the provisions.The legislature could delegate the enforcement of the law and theresulting infringement on basic rights to administrative authorities.The complainants' claim is without basis.

D. Reason for a Decision of Nonconformity to the

Constitution

(1) When a statute or a statutory provision is unconstitutional,the normativity of the Constitution must be defended by invalidating the statute or provision. However, despite the unconstitutionality ofthe instant provisions, we find it not desirable to immediately ex-tinguish their legal force for the following reasons.

Firstly, the zone designation itself is part of the process of con-cretely realizing the socially bound nature of the right to landown-ership, and therefore it is in principle constitutional. It is unconsti-tutional merely because it does not compensate even in an exceptionalsituation of imposing a cruel burden on some landowners. It is de- sirable to maintain the statute until it is brought to compliance with the Constitution by the legislature.

Secondly, as said before, the Constitutional Court cannot uni-formly determine the concrete standard and method of measuring and compensating the cruel burden. The legislature itself must gather allthe concrete and objective data and determine for individual proper- ties. The

instant provisions can be cured in several different ways, such as monetary compensation, dezoning, or public purchase.

Choosing in which legislative form, for whom, and how compen-sation is most desirably and reasonably provided for is the legisla-tive policy task for the legislature that has a broad legislative-formative power, not one for the Constitutional Court.

(2) The Constitutional Court leave the instant provisions valid at least formally because the Court cannot restore a constitutional stateof affairs by simply eliminating the instant provisions from the legalsystem and only the legislature can do so through legislative revision.Therefore, this decision of nonconformity is accompanied by a dutyfor the legislature to cure the defect promptly. The legislature must not leave in tact the instant provisions that do not provide compen-sation for the exceptional situation of cruel burdens above and beyondthe scope of the social limit and thus violate the Constitution, and hasa duty to eliminate the unconstitutionality by restoring the propor-tionality between the provisions' legislative purpose and the guaran- tee of the right of property by legislating compensation provisions.

The zone designation can be compensated for only after compre-hensive and thorough on-site surveys of individual properties, procure-ment of financial resources, and careful adjustment of various com-peting interests. It will be difficult to legislate the compensationprovisions in a short period. However, some landowners have sufferedunder the cruel burden for long time without compensation since thefirst zone designation. In light of that, the legislature must enactthe compensation provisions as soon as possible.

(3) The Court's decision of nonconformity in principle bans fur- ther application of the unconstitutional law, like a decision of uncon- stitutionality. Administrative authorities shall not designate any new development-restricted zone pursuant to the instant provisions beforethe legislature enacts compensation provisions.

However, even if we shall discuss separately whether the land-owners, having carried the cruel burdens in the past, can wait forthe compensation provisions to be legislated and then exercise their rights, they can by no means contest the validity of the zone des-ignation itself or justify their conduct violating the zone designation.

4. Conclusion

Therefore, the instant provisions are unconstitutional but willbe valid formally until the new compensation provisions are enacted.This decision is pursuant to the consensus of all justices exceptJustice Cho Seung-hyung and Lee Young-mo, whose dissenting opin-ions follow.

5. Justice Cho Seung-hyung's Dissenting Opinion

The majority does not overrule the precedents concerning a de-cision of nonconformity to the Constitution. (1989.9.8, 88Hun-Ka6;1991.3.11, 91Hun-Ma21; 1993.3.11, 88Hun-Ma5; 1994.7.29, 92Hun-Ba49, et al.; 1995.9.28, 92Hun-Ka11; 1995.11.30, 91Hun-Ba1, et al.; 1997.3.27,95Hun-Ka14; 1997.7.16, 95Hun-Ka6, et al.; 1997.8.21, 94Hun-Ba19; 1998.8.27, 96Hun-Ka22, etc.). I dissent for reason that we shoulddepart from the above precedents and issue a simple decision of un- constitutionality in this case. The reason for the departure was de-tailed in the dissenting opinions attached to the 92Hun-Ka11 PatentAct Article 186 (1) decisions on constitutional review on request, the 91Hun-Ba1 Income Tax Article 60 and the former Income Tax Article 23 (4) decisions on constitutional complaints, and is repeated in sum-mary as follows:

Firstly, a decision of nonconformity violates the letter of Articles111 (1) (ⅰ) and (ⅴ) of the Constitution and Articles 45 and 47 (2)of the Constitutional Court Act.

Secondly, the above precedents and the majority adopt the Ger-man Constitutional Court's precedents. However, we and Germanyhave different legal systems and we cannot wholly adopt them.

The German Constitutional Court Act, after nonconformity deci-sions were established through precedents, did provide an indirectstatutory basis for them in its fourth revision in 1970. Even beforethe revision, Article 78 stated, “when the Federal Constitutional Courtis convinced that federal law is not conforming to the Basic Law, orthat state law is not conforming to federal law, the Court declaresthe law invalid.” The Court invalidates the law only when it is‘convinced’ of the law's nonconformity. Therefore, the provision canbe interpreted that, when there is merely an opinion of nonconform- ity, or when consideration of the vacuum in law that may arise outof invalidation undermines ‘conviction’, the Court may issue other de-cisions (constitutionality or nonconformity). However, our Constitu-tional Court Act provides only for review of the constitutionality,i.e., “constitutionality” or “unconstitutionality” only, and does not haveany provision that can be interpreted to satisfaction as authorizingthe Court to issue a decision other than the above two when itstrongly believes that immediate invalidation is impossible due toother considerations. Our Constitution or the Constitutional CourtAct does not even use the phrase “nonconforming”.

Germany in its Constitutional Court Act Article 79 recognizedthe retroactive effect of the Court's decisions. To the contrary, werecognize only the prospective effect of the Court's decisions unless they are on

criminal provisions.

Therefore, in Germany, a decision of unconstitutionality will causegreater consequences due to the vacuum in law than in Korea, andtherefore, a decision of nonconformity had to be established by pre-cedent. In our system, where the decisions have only prospectiveeffects, the vacuum or confusion in law or other phenomena dis-rupting the legal stability is not likely to happen. Therefore, thereis no need to adopt German precedents even at the expense of vio- lating the letter of our Constitution and laws.

Thirdly, Germany's precedential and legislative history shows thattheir precedents do not violate the letter of the Constitution or theConstitutional Court Act and the interpretations have statutory bases(Articles 78 and 79 before the fourth revision). The precedents werealso necessary to remedy the serious vacuum in law that may arise in a system that fully recognizes the retroactive effects of unconsti-tutionality decisions. They were later vindicated by legislative follow-up. This history is not applicable to us, who do not have provisional bases and necessity for such precedential development. Despite that,the Constitutional Court has issued decisions of nonconformity forten years and deserves criticism that it irresponsibly adopted Germanprecedents without serious study, analysis, and evaluation.

Fourthly, the legislative intent behind Articles 45 and 47 of theConstitutional Court Act reflects our twenty-seven-years-long expe-rience of having witnessed democracy's regression under authoritarianregimes, and is committed to exclude any temporary application of unconstitutional laws from the authoritarian past, which may meanits rationalization. Therefore, the intention was to allow the Courtto 'uphold if constitutional' and 'strike down if unconstitutional' butprohibited it from issuing any other decision. In order to abate theshock arising out of the vacuum in law, we recognized only the pro-spective effects of the Court's decisions. In light of this legislative intent, a modified decision such as that of nonconformity shall never be permitted.

Therefore, this decision of nonconformity violates the Constitution,and the precedents must be overruled. We shall issue a decision ofunconstitutionality.

6. Justice Lee Young-mo's Dissenting Opinion

The majority opinion can be summarized as follows:

The instant provisions are constitutional as applied to thelands that can be used in the same manner as before. However,they do not provide compensation for bare building lots and theproperties that cannot be used according to the original landclassification

and its land conditions due to the changes follow- ing the zone designation. They constitute an excessive restric-tion on the right to property, departing from the principle of pro- portionality. Also, they violate the equality principle in compar- ison to the burdens they impose on other lot owners in the zone.

For following reasons, I cannot concur.

A. Article 23 (1) of the Constitution declares a guarantee of pri-vate property but specifies that its content and limits be determined by statute. Section 2 of the Article states that the right to propertymust be exercised according to public welfare. The social limit onthe property right can be endured by the people as long as it is ap-propriate for public welfare. Therefore, no issue of compensationarises as long as the restriction does not arise or is not interpretedto arise to the level of complete deprivation.

However, the landowner must be free to use and dispose of theland. The two elements form the core of the institutional guarantee of private property.

(1) Let us first examine whether the restriction on bare buildinglots constitutes infringement on the core content of the land use.

The Urban Planning Act (the Act, “hereinafter”) Article 21 (2) states, “Inside the development-restricted zone . . ., there shall not be any construction or structure erected, any change in the qualityand form of the ground, any subdividing, or any urban planningactivity that violates the designating purpose” and Section 3 states,“The conduct restricted under Section 2 and other matters necessaryfor development restriction shall be determined by the decrees ofMinister of Construction and Transportation within the scope of the presidential decree.”

Pursuant to the statutory delegation, Article 20 (1) (ⅰ) of the Enforcement Decree of the Act (revised by Presidential Decree No.15799, 1998.5.19.) provides that Mayor or County Supervisor mayauthorize construction of buildings and structures on bare buildinglots if it does not interfere with the designating purpose. The struc-tures thus permitted are: a) Construction and erection of structurenecessary for public interest; b) Construction and erection of struc-ture inappropriate to be located in a population concentrated areaand appropriate for being located in a development-restricted zone;c) Structure deemed necessary for agriculture, forestry, fishery, andother activities not interfering with the purpose of the developmentrestriction designation; d) Rebuilding within two years of those struc-tures previously demolished for the purpose of building communitycooperative facilities, public utility facilities, publicly used facilities,and public facilities within the development-restricted zone pursuantto the decrees of Ministry of

Construction and Transportation; e)Buildings and structures deemed necessary for improvement of theliving conditions of the residents inside the zone.

These buildings and structures cover almost all construction ac-tivities except for new construction of urban-type structures such asresidential, commercial, and factory buildings. The use of bare build-ing lots is prohibited only in these exceptions. (Article 7 of theEnforcement Rule promulgated pursuant to the Enforcement Decree(1998.5.19. Ministry of Construction and Transportation Order No. 133)specifies in detail the types and sizes of buildings and structurespermitted on bare building lots.)

(2) Let us then examine whether the restriction making the con- tinuation of the preexisting use impossible due to changes in circum-stances requires compensation.

After the zone designation, if the land cannot be used in the samemanner as before, the landowner can maintain an action against thosewho interfere with the use consistent with the land classificationand conditions, and obtain injunction or damages. The instant pro-visions themselves are not related to the state of affairs.

The development-restricted zone is part of an urban planningprogram. If changed circumstances do not permit the continued use, the landowner can obtain approval from Mayor or County Supervi-sor for changing the quality and form of the land, as long as thechange does not interfere with the designating purpose or involvessubstantial soil or rock excavation or deforestation. (EnforcementDecree Article 20 (1) (ⅱ), Enforcement Rule Article 8 (1)). In other words, the land can be developed into building lots, farms, or public use lands depending on its location and contour. What is prohibitedis formation of city streets involving residential, commercial, and in-dustrial structures (Furthermore, the rules and regulations are beingrevised continuously in order to accommodate the changes in the sur-rounding areas and the inconvenience to the zone residents' living.)

(3) Even the lands inside the urban planning zone are bannedsome construction activities in some designated areas and districtsfor the purpose of facilitating the city's healthy growth and promotingpublic peace and welfare. (Articles 1 and 4 of the Act) The areasin which construction and other activities are banned or regulated:a) residential, commercial, industrial, and green area designation (Ar-ticle 17); b) scenic preservation, beautification, height, fire preven- tion, preservation, airport and facility preservation district designa- tion (Article 18); c) factories, schools, and central wholesale facili-ties, and other special facilities regulation zone (Article 20); d) des-ignation of the city street formation control zone (Article 20-2); e)the detailed plan zone designation for the

purpose of normalizing theland use and managing the functions, looks, and environment of the city efficiently (Article 20-3); f) designation of the greater planningzone for the purpose of facilitating balanced growth of several cities and preservation of the environment (Article 20-4 and 5); g) desig- nation of the prospective urban development zone for the purpose ofdiluting and distributing population and industrial concentration andfacilitating balanced urban growth (Article 22).

All lands that received the area, district, or zone designationsinside the urban planning zone under a) to g) are subject to restric-tions on new building, additions, and renovations, and also on thebuilding-area-to-land ratio and the building-volume-to-area ratio,depending on the designating purpose and the land conditions. Any change in form and quality of the land requires approval. Land usethere is restricted equally as in development-restricted zones anddiffers from the latter only in the method, and yet is not compen-sated and rightly considered as a social limit inherent in the right toproperty. Only the restrictions that amount to a public taking oruse and therefore infringe on the core value of private property,namely that of the right of use and disposal, are exceptions that are compensated (Land Expropriation Act, Article 3).

(4) The instant provisions are aimed at preventing disorderlyurban growth, preserving and controlling the natural environment andthe living space, and protect national security. Urban environmental preservation means maintaining and creating an enjoyable surround-ing. Prevention and elimination of waste, noise, vibration, offensiveorder, and provision of clean air and water are the important condi-tions of an enjoyable living environment. In order to accomplish thislegislative purpose, we need the means, namely, restriction of thelandownership.

The owners of bare building lots in development-restricted zones cannot engage in urban-type construction activities involving residen-tial, commercial, or industrial buildings. However, they may buildother buildings or structures pursuant to the above ‘A. (1)’ and changethe form and quality of the land in event of a change in the circum-stances. They are not prohibited from selling the land, either. Ifillegal buildings and structures are allowed on bare building lots, pop-ulation will concentrate in the development-restricted zones and willlead to construction of roads, water supplies, and sewerage, and ulti-mately insensible urban expansion. Insensible expansion and growthwill be accompanied by environmental pollution, infringing on the cityresidents' right to live in a healthy and enjoyable surroundings.

B. The instant provisions directly concern Articles 23 (guarantee of the right of property and its restriction), 35 (the right of environ-ment), and 122 (use, development, and preservation of national land) of the Constitution. We shall examine that and address the issue of the

standard of constitutional review.

(1) Our Constitution provides for many basic rights that guaran-tee people's rights and liberties. These basic rights have distinctessences and functions, and their values are not uniform. All peoplehave the environmental right (Article 35), the right to live in ahealthy and enjoyable environment, and this right forms the basis forrealizing human dignity and worth and the right to pursue happiness.It takes precedence over economic freedom in exercising one's pri-vate property right.

First of all, the Environmental Policy Basic Law, which concre-tized the right of environment, specifies that it is not only people'srights and duties but also the state's duty to protect people from en-vironmental pollution, and maintain and preserve the natural sur-roundings and the living space. Qualitative improvement of the envi-ronment, creation of an enjoyable environment through environment-al preservation, and maintenance of a balance between mankind andthe environment is an indispensable element of public health, enjoy-ment of cultural life, land preservation, and perpetual national progress.According to the Law, the state, local self-governing entities, busi-ness entities, and people must endeavor to maintain and create abetter environment and give priority to environmental preservation,thereby not only distribute the benefits widely among the presentgeneration but pass it down to the future generation (Articles 1, 2,and 6) {The Twenty Seven Principles in the Rio Declaration on En-vironment and Development on June 8, 1992, also show that environ-ment is an international issue surpassing national dimensions.}

Next, aside the provision on the environmental right, the Con-stitution explicitly authorizes the state to impose on people that re-strictions and obligations necessary for national land use, develop-ment, and preservation (Article 122). The National Land Use Man-agement Act authorized thereunder specifies that national land is alimited resource and yet a common basis for promotion of publicwelfare, and therefore that it must be used after giving the first con-sideration to public welfare in favor of preserving natural environ-ment, and giving full consideration to all regional features (Article1-2 of the Act). In other words, we have a small land compared tothe population. Planned and reasonable use, development and pre-servation is a very keen task in that situation. The Constitutionand the Act establishes clearly that the first consideration in landuse must be given to public welfare, and environmental preservation must also be considered.

The Constitution explicitly provides for the social accountabilityof the right of property (Article 23) and yet separately provides forthe right of environment (Article 23) and the state's authority toimpose duties and obligations for the purpose of national land use,management, and preservation (Article 122). It means that the rightof landownership

can be guaranteed only to the extent that it doesnot undermine the harmony and balance with the communal life (5-2 KCCR 36, 45, 92Hun-Ba20, July 29, 1993).

The above constitutional provisions, by emphasizing the socialduty to exercise one's property right in accordance to public welfareand environmental preservation, provide the basis for a broader form-ative power of the legislature in setting the content and limit of the right of landownership.

(2) The right of landownership is a compound product of bothrights and duties. In setting its content and limit, the social neces-sity and the prevailing thought that gave rise to the related constitu- tional provisions become an important guidance for legislation. Asidethe fact that the right of property has an inherent limit in it, thelegislature may also engage in regulatory restrictions for the socio- economic purpose of facilitating cities' healthy growth and increas-ing national security, public order, and public welfare. These regu-latory legislations restrict on the landowners' economic freedom. Theextent of the restriction is determined not only by the regulatorypurpose but also by the location, contour, and use of the regulatedland, the interests of the related parties, the state's and the people's efforts to conserve nature and provide the enjoyable living space byhousing development policies (Article 35 of the Constitution), thestate's imposition of restrictions and obligations on national land use, development, and preservation (Article 122 of the Constitution). They therefore constitute a policy legislation that the legislature has broaddiscretion in (2 KCCR 245, 262, 89Hun-Ka95, September 3, 1990).The Constitutional Court does not have more prudence and sensi-bility than the legislature in policy issues. In social and economicregulatory legislations, the legislature must be respected unless itcauses a significant departure from the scope of its discretion.

Therefore, a constitutional review on land use regulation mustconsider the above rationales in order to interpret the concept ofguaranteeing landownership correctly.

(3) To state the conclusion first, the instant provisions are con-stitutionally proper as a regulatory legislation necessary for the pre-vention of environmental pollution that is harmful to national secu-rity, cities' natural surroundings, and living space. Even if the regu- lation restricts use of bare building lots and interferes with the con-tinued use by bringing about changes in the circumstances, it allowssome uses that do not violate the legislative intent of the instantprovisions do not restrict the landowners' right of disposal. There-fore such regulation is part of the social limit inherent in the rightof property. In balancing the interests, the benefit in national secu- rity and public welfare is greater than the harm to the landowners. The instant provisions are also

reasonable and necessary. Hence noviolation of the Article 37 (2) requirement for basic rights restric-tions. Also, since there is no restriction that arises to the level ofdeprivation, no issue of equality arises out of comparing owners ofbare building lots or those lots of which the circumstances havechanged to other landowners inside the development-restricted zone.

C. (1) Today is the day that the Constitutional Court's decision extinguished our constitutional provision on the environment (Article35), the basis for realization of human dignity and worth and pur-suit of happiness. The phrase carefully calligraphed on the rice paper,“all people have right to live in a healthy and enjoyable environ-ment, and the state and people must work toward environmentalpreservation . . .” was pushed out by the guarantee of private prop-erty into the role of an antiquarian decoration. The majority turn ablind eye to the above constitutional provisions (Articles 35, 122)without any clear explanation and are silent about the rules and reg-ulations that specified the venues for using bare building lots andchanged-circumstance properties, in surrendering to a decision ofunconstitutionality.

I have a few words for the majority. Justice Holmes said, “thetrue meaning of a judgment is consideration of policies and socialinterests. It is not profitable to imagine that a controversy is re-solved by mere logic or uncontested general statements of law.” Healways emphasized jurisprudence that recognizes the social role oflaw and trial based on 'the felt necessities of the time' that depends on social and economic changes.

(2) I would like to state additional reasons for upholding theprovisions. Reduction, release, or compensation of the development-restricted zoning was a platform that the candidates raced to adoptin every election. However, the instant provisions since adoption in1971 and revision in 1972 were passed down to today without anychange. The most important reason for that is the majority's con-sensus on their positive effects, prevention of disorderly urban growthand environmental pollution. Zoning was done without thorough ad-vance survey and restrictions were initially too harsh. But, it shouldnot be denied that the inconvenience to the zone residents and in-terference with their making of living, and other negative effectsarising out deficient and irrational provisions were addressed to byconstant revision of the rules and regulations.

The issue of whether the provisions in existence for twenty- seven years need be revised according to the changing time or to what extent they will be revised can be best resolved not by theConstitutional Court but by the legislature, the function of which isfree discussion and gathering of public opinions. Invalidation of suchpolicy-related provisions as the above interferes with the policy-

making and policy-execution and is not desirable. Unless the pro-visions do not support any interpretation that is constitutional, theCourt needs be reserved in invalidating them (9-2 KCCR 454, 469,476, 96Hun-Ba14, October 30, 1997, Justice Lee Young-mo's dissent).

Furthermore, today's nonconformity decision must be acceptableto the present and also the future generation's standard of universal- ity and objectivity. The instant provisions are fated to be revised bythe decision. The legislature must revise them by taking into accountthe holding and reasoning of this decision. Thus revised, the stat- ute will directly affect preservation of urban environment and devel-opment and use of national land. If it results in urban expansionand the consequent environmental pollution, it may interfere with thefuture generation's right to use the land and live in an enjoyableenvironment. Such result can be attributed to this decision. Thatis one of the reasons why an issue such as this should be dealt withby the legislature, a representative body, not by the ConstitutionalCourt.

Another concern is that the majority mentions the duty to com-pensate. Rapid industrialization and urbanization of population arenecessarily accompanied by environmental pollution. The regulatorylegislation such as the instant provisions are an unavoidable mini-mum option in order to prevent pollution, preserve natural and livingenvironment, and guarantee the city residents a healthy and enjoy-able living space. As I said before, the issue of compensation may arise out of the infringement on such core content of the landown- ership system as the right to use and dispose because it amounts todeprivation of the right of property. But, such issue should not arisebut for such exceptional situation. If land use regulations or ordi- nances aiming for environmental preservation require compensation,the state and local governments will be hesitant to enact such regu- latory legislation.

D. I do not advocate that conservation always takes precedenceover growth under the Constitution. Our Constitution is silent on the priority between conservation and growth. Harmonizing the two con-tradicting policies is in the domain of legislative formation, not thatof the Constitution.

Pollution and conservation have long become the most impor-tant social problem of our time. Today's environmental debate, coun-tervailing against economic growth, is one of the most difficult prob-lems that cannot be entrusted to anyone but ourselves.

However, it should not be forgotten that optimism about pollu-tion and an irrational growth-first policy lead to destruction of the Nature, disruption of the ecological balance, and ultimately the un-stoppable disaster. I can only hope that the legislature, in reducingor releasing development-restricted zones, keep in mind the futureof clear air, clean

water, and green forests, and implement pro-environmental development.

Whether siding with growth-first arguments or following conser-vationism, we should engrave on our mind the words of ChieftainSealth, “we do not own the land, the land owns us for a while.” Theone and only earth, though angry with pollution, is the home thatwe and our future generation will live forever. We all should treatit accordingly.

Justices Kim Yong-joon(Presiding Justice), Kim Moon-hee(Assigned Justice), Lee Jae-hwa, Cho Seung-hyung, Chung Kyung-sik, Koh Joong-suk, Shin Chang-on, Lee Young-mo, Han Dae-hyun.