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헌재 2017. 5. 2. 선고 2017헌마444 결정문 [기본권 침해 위헌확인]
[결정문] [지정재판부]
Cases

2017Hunma44 Verification of unconstitutionality of infringement on fundamental rights

Claimant

Park Jong-soo

Date of decision

2017.05.02

Text

The appeal of this case is dismissed.

Reasons

1. Summary of the case;

The claimant cultivated the farmland in Busan, which was cultivated by the deceased Park Jong-dong, Busan, ○○-dong, ○○, and △△△△-dong, 1970. At the time, the part on the end of the farmland in question was used as a farm road. The claimant sought to transfer the said farmland around 1978, and the purchaser suggested a condition that excluded the part to be used as the concentration of the said farmland. The claimant sought a view to the private house in order to divide the said area into a non-industrial area of less than 100 square meters, the land category of which is a road, ○○-dong, △△△△-dong, and △△△△△△△ (hereinafter “instant land”). Since then, the claimant divided the instant land into the private house in question as a road.

The land category was changed to a road. The claimant asserted that the property right was infringed upon by being restricted by the exercise of rights based on ownership due to the change of land category of the instant land, and filed a petition for adjudication on constitutional complaint of this case under Article 68(1) of the Constitutional Court Act on April 21, 2017.

2. Determination

An adjudication on constitutional complaint under Article 68(1) of the Constitutional Court Act shall be filed within one year from the date on which the grounds for adjudication on constitutional complaint exist (Article 69(1) main text of the Constitutional Court Act). The claimant asserts that the head of the Gu, in around 1978, changed the land category of the instant land into a road, thereby infringing on the property right due to the act of changing the land category into a road. Therefore, the claimant's ground for restriction on fundamental rights asserted at that time has occurred. As such, the claimant filed a adjudication on constitutional complaint on April 21,

3. Conclusion

Therefore, the appeal of this case is unlawful, so it is dismissed in accordance with Article 72 (3) 2 of the Constitutional Court Act. It is so decided as per Disposition by the assent of all participating Justices.

Judges

Chief Justice Cho Yong-ho

Justices Kim Jong-soo

Military Justice Cho Chang-ho

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