[1] The lawful requirements for filing a motion for unconstitutionality

[2] The case rejecting an application for a recommendation of unconstitutionality on the ground that the legal provision which is subject to an application for a recommendation of unconstitutionality is not applicable to the relevant litigation case

[1] In order for a court to seek an adjudication on the constitutionality of a law, the pertinent law must be the premise for a trial on the constitutionality of a law. Here, the term "the premise of a trial" means a specific case to be pending before the court, the law at issue should be applied to the relevant litigation case, and the court in charge of the relevant case shall make another judgment depending on whether the law is in violation of the Constitution.

[2] The case rejecting an application for a recommendation of unconstitutionality on the ground that the legal provision which is subject to an application for a proposal of unconstitutionality is not applicable to a trial in the relevant litigation case

[1] Article 107 (1) of the Constitution, Article 41 (1) of the Constitutional Court Act / [2] Article 107 (1) of the Constitution, Article 41 (1) of the Constitutional Court Act

[1] Supreme Court Order 90Ka23 dated March 27, 1990 (Gong1990, 1229) Supreme Court Order 91Hu43 and 44 dated April 29, 1991 (Gong191, 1955)

Applicant 1 and one other (Attorney Jeon Tae-tae, Counsel for the applicant-appellant)

All applications for the unconstitutionality of this case are dismissed.

In order to propose a trial on the constitutionality of a law, the court should be the premise for a trial on the constitutionality of a law. Here, "the premise of a trial" means that a specific case is pending in a court, the law at issue is applicable to a trial on the relevant case, and the court in charge of the relevant case makes another decision depending on whether the law is in violation of the Constitution or not.

In light of the records, the 96Da52359 case, which is the main case of the case of the application for the cancellation of the above transfer of ownership, is the case of appeal against the Busan District Court 95Na334 case. The 1,155/1,206 shares out of the 3,987m206m2 (hereinafter referred to as the "share of land") owned by the applicants in the above appellate case, was dismissed on June 29, 1976 under the Ordinance on Special Measures for the Expropriation and Use of Land within the Mobilization Area (hereinafter referred to as the "Ordinance on Special Measures for the Expropriation of Land") under Article 5 (4) of the Ordinance on Special Measures for the Expropriation and Use of Land within the Mobilization Area (hereinafter referred to as the "Ordinance on Special Measures for the Expropriation of Land"), and the applicant's appeal against the court of first instance, which dismissed the main claim for the cancellation of the transfer of ownership, which is the purpose of expropriation by adding the above appellate court to the above appellate court, and thus, the applicant's claim for the transfer of ownership to the above land was extinguished.

However, Articles 2 and 3 of the Act on Special Measures for the Adjustment of Land Expropriation and Use in Areas Subject to Mobilization under Article 5 (4) of the Act on Special Measures for National Information that the applicant asserts as unconstitutional, such as the theory of lawsuit, where the whole or part of the land expropriated or used under the above Ordinance on Special Measures for the Adjustment of Land, Etc. (hereinafter referred to as the "Special Measures Act") becomes unnecessary for military purposes within five years from the date the redemption of the securities paid as the expropriation price is completed or the redemption is completed, the provisions on the right to repurchase by the inmate or his heir are stipulated. Article 4 of the above Special Measures Act is clear that if all or part of the expropriated land becomes unnecessary for military purposes after the expiration of the above period of repurchase right, all of the provisions on sale by a negotiated contract with the inmate or his heir are not applicable to the judgment on the above main claim.

In addition, Article 39 of the Decree on Special Measures is not applicable to the repurchase right of the inmate and the corresponding state's obligations, which are the premise for the determination of the applicant's above preliminary claims, and Article 39 of the above Decree on Special Measures does not apply to each provision of the above Special Measures, which was enforced since January 13, 197 after the above appellate judgment was rendered. Thus, each provision of the above Act on Special Measures does not apply to the above preliminary claims.

Ultimately, each provision of the Special Measures cannot be said to be the premise of a judgment on a case involving 96Da52359, a party member who is a principal lawsuit, and therefore, the application for proposal of unconstitutionality of this case shall be deemed to be unlawful.

Therefore, it is so decided as per Disposition by the assent of all participating Justices who decide to dismiss all applications for the unconstitutionality of this case.

Justices Lee Yong-hun (Presiding Justice)