[1] Whether the provisions of the former Act on Special Measures for Designation and Management of Development Restriction Zones stipulating that a building building is removed from a development restriction zone to a certain extent violates the Constitution by excessively infringing on a building owner's property right in the development restriction zone (negative)

[2] Whether the main sentence of Article 22 [Attachment 2] 4(a) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones violates the mother law (negative), and whether the above provision applies to the removal of a building which is not residential (negative)

[1] Article 1(1)2 and 3 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005), Article 22 [Attachment 2](4)(a) and (b) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 19037 of Sept. 8, 2005), Article 23 of the Constitution / [2] Article 11(1)3 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005), Article 22 [Attachment 2] subparagraph 4(a)(a) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones

[1] Constitutional Court en banc Order 2001HunBa80, 2001HunBa84, 2001HunBa84, 2001HunBa102, 2001HunBa103, 2002HunBa26 decided Feb. 26, 2004 (HunGong90, 331)

Plaintiff (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

South Ocean Market

Seoul High Court Decision 2006Nu9261 Delivered on September 29, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the fact that buildings, other than factories, etc. for the purpose of the Act on Special Measures for Designation and Management of Development Restriction Zones and factories, etc. for the preservation of the natural environment surrounding cities, are highly likely to cause noise, vibration, pollution, etc., and the possibility of urban disorder is considerably higher than that of urban spreading through the increase of population, there is a need to strictly limit construction within development restriction zones in order to prevent any disorderly expansion of cities and ensure the healthy living environment for urban citizens, considering the fact that there is a need to strictly limit the construction of buildings within development restriction zones in light of the fact that there is a high possibility of damage to the natural environment and that there is a high possibility of urban spreading through the increase of population, etc., the appropriateness of the means of property rights within the development restriction zones cannot be recognized as a violation of the proviso of Article 11(1)2 and 3 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383, Jan. 27, 2005; hereinafter referred to as the “former Act”).

The ground of appeal on this point is without merit.

2. As to the grounds of appeal Nos. 2 and 3

Article 11(1)3 of the former Act provides that one of the acts eligible for permission from the head of a Si/Gun, etc. in a development-restricted zone shall be the creation of a relocation complex to remove a building removed due to the implementation of a public project under Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (limited to a public project within a development-restricted zone). Article 11(6) provides that the detailed criteria for permission shall be prescribed by Presidential Decree. Meanwhile, Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects provides that "A project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by Presidential Decree for a person who is deprived of his/her base of livelihood as a result of the implementation of a public project to provide a residential building due to the implementation of a public project." The main sentence of Article 22 [Attachment 2] subparagraph 4(a) of the former Enforcement Decree of the Act shall not be interpreted to have violated the provisions of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

The judgment of the court below to the same purport is just, and there is no error of law such as misunderstanding of legal principles as alleged in the grounds of appeal, and as long as such judgment of the court below is justified, it does not affect the conclusion of the judgment even if there is any error in the supplementary judgment

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)