Change in Use of Building case

[9-1 KCCR 529, 94Hun-Ba22, etc., May 29, 1997]

A. Background of the Case

In this case, the Constitutional Court struck down Article 78 (1) of the Building Act that provided a criminal penalty for unlicensed construction when Article 14 of the same Act defined change in the use of a building as 'construction' and determination of what changes fall under that definition was completely delegated to presidential decrees.

Article 14 (1) of the Building Act (prior to revision by Act No. 4381 on May 31, 1991) deemed any change in use of a building specified by presidential decrees as construction and Article 78 (1) of the same Act punished construction not licensed by a mayor, a county supervisor, a district Chief within the City Planning Zone with imprisonment up to three years or a fine up to 50 million wons.

The complainant was sentenced to a fine of two million wons for unlicensed change in use of a building under Article 78 (1) in a summary trial held in the Seoul District Criminal Court. He appealed and requested a full trial, and at the same time requested constitutional review of the provision on the ground that it constituted blanket delegation. When denied, he brought a constitutional complaint before the Constitutional Court.

B. Summary of the Decision

The Constitutional Court struck down the portion of Article 78 (1) that applied criminal penalty to the Article 14 'construction' when it did not satisfy the Article 8 (1) licensing requirement. The Court reasoned that the provision violated the principle of nulla poena sine lege guaranteed by Articles 12 (1) and 13 (1) of the Constitution and the limit on legislative delegation specified by Article 75 of the Constitution as follows:

The Article 75 limit on legislative delegation applies to laws concerning crimes and punishment as well as other laws. Furthermore, the Constitution puts particular emphasis on protection of human rights from criminal punishment and for that reason provides for the principles of nulla poena sine lege and due process of law, requiring all punishments to have statutory bases. Therefore, legislative delegation in this area is

undesirable and must abide by its requirements and scope more strictly. In order to delegate criminal legislation to a lower rule-making process: firstly, there must be urgent necessity or about the matters that cannot be specified in detail in the parental statute; secondly, the statutory description of the elements of crimes must be specific enough to allow ordinary people to infer the scope of the punished conduct; and thirdly, the parental statute must prescribe the type, maximum severity, and scope of the applicable penalties clearly. Validity of legislative delegation must not be examined on an individual statutory provision but through an organic and systemic analysis of all the related provisions.

However, the Building Act delegates the task of determining the details of the regulation to the lower rule-making processes of presidential decrees or ordinances without providing any specific standard or scope. Article 14 leaves all the matters about the limit on change in use of a building "as determined by presidential decrees" just as all the matters about the limit on use of a building is delegated to other lower rule-making processes. As a result, ordinary people is unable to predict solely from Article 14 what types of change in use of their buildings the presidential decrees will place under the licensing requirement.

Article 14 leaves the elements of crimes to be determined by lower rules, contravening nulla poena sine lege of Article 12 (1) and 13 (1) of the Constitution and the limitation of legislative delegation in Article 75 of the Constitution.

C. Aftermath of the Case

There were many interested parties to the decision and accordingly had broad social impact. In its wake, the National Assembly revised the Building Act by Act No. 5450 on December 13, 1997 and the new Article 14 enumerates the following eleven types of change in building uses: residential, assembly and entertainment, business, lodging, education, manufacturing and industrial, dangerous substance storage and processing, medical, retail and transportation, and other facilities prescribed by presidential decrees.