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(영문) 헌재 2015. 1. 29. 선고 2013헌바136 결정문 [구 도시 및 주거환경정비법 제4조 제1항 위헌소원]
[결정문] [전원재판부]
Cases

Article 4 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which is unconstitutional.

Claimant

○○ case

Law Firm Chungcheong, Attorney

Attorney Kim Yong-soo, Lee Jong-soo, Lee Lee Dong-won

relevant case

Seoul High Court 2012Nu15236 Invalidity of the decision to designate a redevelopment area

Date of Declaration

2015.01.29

Text

The appeal of this case is dismissed.

Reasons

1. Summary of the case;

On June 25, 2004, the Mayor of Jongno-gu Seoul Metropolitan Government publicly announced a master plan for housing redevelopment projects for the Jongno-gu Seoul Metropolitan Government ○○○ Dong 47 Dong (Seoul Metropolitan Government Notice No. 2004-204), residents' public inspection, etc. on December 27, 2007 through procedures, such as the Seoul Jongno-gu ○○○dong 47,428 square meters, ○○ Housing Redevelopment and Rearrangement Zone (this is the ○○ Housing Redevelopment and Improvement Zone) (hereinafter the Seoul

D. The head of Jongno-gu Seoul Metropolitan Government enacted a management and disposition plan on April 7, 201 (hereinafter “management and disposition plan”) on the establishment of ○○ Housing Redevelopment and Improvement Project Association (hereinafter “Union”) on June 12, 2008, and on November 19, 2009, the head of Jongno-gu Seoul Metropolitan Government authorized the implementation of the housing redevelopment and improvement project plan for the rearrangement zone (hereinafter “authorization and approval for the implementation of the project”). Accordingly, the Mutual Association established a management and disposition plan on April 7, 201 (hereinafter “management and disposition plan”).

On the other hand, the claimant is the owner of the Jongno-gu Seoul Metropolitan Government ○○○○-dong 47-193 large 513.1 square meter, which is included in the rearrangement zone, and on June 20, 201, filed a lawsuit with the Seoul Administrative Court for the determination of the designation of the rearrangement zone, the authorization of establishment, the disposition of authorization for project implementation, and the disposition of the management and disposal plan to seek confirmation of invalidity (201Guhap19345). However, on April 27, 2012, the claim was all dismissed. The claimant appealed to the Seoul High Court (2012Nu15236) and filed an application for adjudication on the constitutionality of Article 4(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Seoul High Court 2012Ga479) while continuing the lawsuit (Seoul High Court 2012Da479), and filed an adjudication on constitutional complaint

2. Object of adjudication;

The subject of this case is whether Article 4 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007, and amended by Act No. 9444 of Feb. 6, 2009) that is the basis law at the time of the decision to designate the rearrangement zone violates the Constitution, and the subject of the adjudication is as follows.

【Provisions Subject to Adjudication】

The former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785, Dec. 21, 2007; Act No. 9444, Feb. 6, 2009)

Article 4 (Formulation of Rearrangement Plan and Designation of Rearrangement Zone) (1) The head of a Si/Gun shall comply with the master plan.

The maintenance plan including the following matters shall be formulated for an area meeting the requirements prescribed by Presidential Decree, such as concentration of old and inferior buildings within the above area, to make it available to residents for inspection for 14 days or more, hear the opinions of the local council, and then apply for the designation of the improvement zone to the Mayor/Do Governor along with it, and if it is necessary to modify the contents of the improvement plan, the modification of the designation shall be applied through the same procedure: Provided, That in cases of changing minor matters

1. Title of the rearrangement project;

2. Rearrangement zone and its size;

3. Plans for installing the urban planning facilities (hereinafter referred to as the "urban planning facilities") pursuant to subparagraph 7 of Article 2 of the National Land Planning and Utilization Act;

4. Plan for installation of joint-use facilities;

5. Plan for the main use, building-to-land ratio, floor area ratio, height, number of floors and total floor area of a building;

6. A plan to conserve urban scenery and the environment and to prevent disasters;

6-2. A plan to protect the educational environment around a rearrangement zone;

7. Expected timing for implementing the rearrangement project;

7-2. Matters on the reconstruction rental houses such as the size, etc. of reconstruction rental houses under Article 30-2 (1) (limited to the area liable to supply the reconstruction rental houses);

7-3. A plan for the matters specified in Article 52 (1) of the National Land Planning and Utilization Act (only where necessary);

8. Other matters necessary for implementing the rearrangement project, which are prescribed by the Presidential Decree.

3. The claimant's assertion;

In addition to allowing residents to make public the improvement plan for at least 14 days, the provision does not provide residents with an opportunity to state their opinions, but only require local councils to hear their opinions. The designation of an improvement zone is based on the fact that there is a worn-out or bad building, thereby allowing residents to lose an opportunity to oppose the contents of the improvement plan, and compelling the petitioner to live in a multi-family housing located in the previous place and after the maintenance project. As such, the provision subject to adjudication infringes on the freedom of residence under Article 14 of the Constitution, the property right under Article 23, and the owner of the land subject to the urban planning discriminates against the owner of the land subject to the improvement plan without reasonable grounds, thereby infringing on the right to equality under Article 11 of the Constitution.

4. Determination

A. Whether to recognize the legal basis of administrative disposition, which has an infinite power, and the premise of judgment

In order to make a request for adjudication on constitutional complaint under Article 68(2) of the Constitutional Court Act lawful, it should be the premise of a trial whether the law applicable to the case in question is in violation of the Constitution or not. Here, it means that the law applies to the case in question, and the order of a trial is different depending on whether the law is unconstitutional or the legal meaning on the contents and validity of a judgment is reached (see, e.g., Supreme Court Decision 2009Hun-Ba101, Sept. 30,

The Constitutional Court has limited the period of filing a lawsuit against an administrative disposition and then filed a lawsuit seeking confirmation of invalidity of the administrative disposition, as to whether the applicable law of the administrative disposition is unconstitutional or not, and the circumstances that violate the Constitution cannot be deemed objectively clear before the Constitutional Court renders a decision of unconstitutionality. Thus, barring any special circumstance, such defect is only a ground for revocation of the administrative disposition, and it does not constitute a ground for revocation.

In addition, even if a lawsuit seeking confirmation of invalidity of an administrative disposition is filed on the ground that the applicable law of the administrative disposition is unconstitutional, the validity of the administrative disposition is not affected. Accordingly, the court determined that the order of the relevant judgment cannot be deemed to have changed or the legal meaning on the contents and validity of the judgment is different, depending on whether the applicable law of the administrative disposition in which disputes arise after the period for filing a lawsuit has already expired (see, e.g., Constitutional Court Decision 2010Hun-Ba251, Jan. 28, 2014; 2013Hun-Ba41, Apr. 24, 2014).

In this case, it is not recognized that there is no change or necessity of the situation to be determined differently. In other words, the relevant case was filed after the lapse of the period for filing a lawsuit against the decision to designate the rearrangement zone, and even if the clause subject to adjudication, which is the legal basis for the decision to designate the rearrangement zone, is unconstitutional, barring any special circumstances, the validity of the decision

B. Whether the defect of prior disposition, which is the cause of revocation, is succeeded and thus recognized as a premise for trial

Where two or more administrative dispositions are continually conducted, when one legal effect of the preceding and subsequent dispositions is completed by combining one another, the defect is succeeded to the preceding dispositions, so even where the effect of the preceding dispositions is impossible due to the lack of dispute and the validity of the preceding dispositions, the validity of the latter dispositions can be asserted on the grounds of the defect of the preceding dispositions. On the other hand, in cases where the preceding and subsequent dispositions are aimed at a separate legal effect independently from one another, the validity of the preceding dispositions may not be asserted on the grounds of the defect of the preceding dispositions except in cases where the defect of the preceding dispositions is significant and obvious (see Constitutional Court Decision 2009Hun-Ba429, Dec. 28, 2010).

A prior disposition and subsequent disposition are combined with each other to complete one legal effect.

Whether the defect of the preceding disposition is deemed succeeded to the subsequent disposition or not should be determined based on a specific case. The Supreme Court denies the succession of the defect in each case of urban planning, project implementation authorization, and expropriation adjudication (Supreme Court Decision 87Nu947 Decided January 23, 1990), designation of the prearranged area for housing site development and approval of the housing site development plan for the implementer (Supreme Court Decision 95Nu1075 Decided March 22, 1996), designation of the prearranged area for housing site development, approval of the housing site development plan, and subsequent acceptance ruling (Supreme Court Decision 95Nu8409 Decided December 6, 1996), designation of the project executor, and disposition for road zone (Supreme Court Decision 2007Du13159 Decided April 23, 209), respectively (see Constitutional Court Decision 2009HunBa429 Decided December 29, 2010).

The prior disposition in this case is an independent administrative disposition aimed at the separate legal effect of each of the two separate legal effects because the designation decision of the rearrangement zone and the subsequent disposition of the authorization for establishment, the authorization for project implementation, and the management and disposal plan are different in their nature. As seen earlier, even if the decision of unconstitutionality is rendered with respect to the provisions subject to adjudication, the defect cannot be deemed null and void as it is significant and apparent, and thus, as long as it becomes impossible to dispute the validity of the decision of the designation decision of the rearrangement zone due to the lack of dispute, the defect of the prior disposition does not succeed to the subsequent disposition

C. Sub-decision

Since the legal meaning of the order or the contents and validity of the judgment of the relevant case varies depending on whether the provisions subject to adjudication are unconstitutional, the instant petition for adjudication is unlawful as it does not meet the premise of the judgment.

5. Conclusion

Thus, the appeal of this case is unlawful, so it is decided to dismiss it as per Disposition.

A. The dissenting opinion of Justice Lee Jong-tae, Justice Kim Jong-soo, Justice Lee Jin, Justice Lee Jin and Justice Lee Jae-won to the same purport as the dissenting opinion of the foregoing precedents (2010Hun-Ba251, etc.) prior to this decision was delivered with the assent of all the participating Justices.

Judges

Justices Park Jong-chul, Justice

Justices Lee Dong-dae et al.

Justices Kim Jong-soo

Justices Lee Jin-sung

Justices Kim Chang-soo

Military Justice Cho Chang-ho

Justices Kang Jong-won

Clerks' Office

Justices Cho Yong-ho

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