[1] The limits of delegated legislation and the criteria for its determination

[2] Whether Article 18-2 (2) 2 (c) of the Enforcement Rule of the former Cultural Heritage Protection Act is invalid beyond the limits of this delegated legislation (negative)

[1] A delegation order can be granted when there exists an individual delegation that specifically sets the scope in the law or upper level order. Here, the specific scope of delegation differs depending on the type and character of the subject matter to be regulated, and thus, uniform standards cannot be set. However, since at least the basic matters of the contents and scope to be stipulated in the delegation order are specified in detail, any person who can at least be able to predict the outline of the subject matter to be stipulated in the delegation order from the pertinent law or upper level order, but in this case, the existence of predictability should not be determined with only one of the pertinent delegation provisions, but be determined with an organic and systematic comprehensive determination of the law or upper level order to which the pertinent delegation clause belongs, the overall structure, purport, and purpose of the pertinent delegation clause, the form and content of the pertinent delegation clause, and the relevant laws and regulations, and

[2] Article 18-2 (2) 2 (c) of the former Enforcement Rule of the Cultural Heritage Protection Act (amended by the Ordinance of the Ministry of Culture and Tourism No. 77 of July 14, 2003) provides that an act of installing or expanding a building or facility in an area within 500 meters from the outer boundary of State-designated cultural heritage and its protection zone, which is likely to impair the landscape of the State-designated cultural heritage and its protection zone, is one of the acts stipulated in Article 20 subparagraph 4 of the same Act. The contents of delegation and delegation, overall structure and purpose of delegation, the overall structure and purpose of delegation of the Act, and the nature of the regulation subject to regulation can be determined systematically and systematically by examining the specific and individual nature of the regulation subject, it can not be predicted that the regulation subject to delegation from the provision of Article 20 subparagraph 4 of the same Act goes beyond the scope of delegation, and it cannot be said that the regulation subject to subparagraph 2 (c) of Article 18-2 of the Enforcement Rule of the same Act does not exceed the scope of delegation.

[1] Articles 75 and 95 of the Constitution / [2] Articles 2, 2-2, 8, 20 subparag. 4, and 74(2) of the Cultural Heritage Protection Act; Article 43-2 of the former Enforcement Decree of the Cultural Heritage Protection Act (amended by Presidential Decree No. 18026 of Jun. 27, 2003); Article 18-2 subparag. 2(c) of the former Enforcement Rule of the Cultural Heritage Protection Act (amended by Ordinance of the Ministry of Culture and Tourism No. 77 of Jul. 14, 2003)

[1] Supreme Court Decision 2001Du5651 decided Aug. 23, 2002 (Gong2002Ha, 2221)

Plaintiff (Attorney Kim Yong-hwan, Counsel for the plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Jeong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2002Nu5650 delivered on August 26, 2003

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A delegation order may be issued when there is an individual delegation that sets a specific scope in the law or upper level order. Here, the specific scope of delegation varies depending on the type and character of the subject matter to be regulated, and thus, uniform standards cannot be set, but at least, since the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the relevant law or upper level order, anyone can predict the outline of the contents to be stipulated in the delegation order from the relevant law or upper level order. In this case, the predictability of the delegation clause should not be determined with only one of the pertinent delegation clause, but rather with the overall structure, purpose, and purpose of the relevant delegation clause, the relevant delegation clause must be determined with an organic and systematic comprehensive determination of the relevant delegation clause, the form and content of the relevant delegation clause, and the relevant laws and regulations, depending on the nature of each regulation subject (see Supreme Court Decision 201Du5651, Aug. 23, 2002).

Article 2(1) of the Cultural Heritage Protection Act (hereinafter referred to as the "Act") provides that the term "cultural heritage" refers to a national, artistic, academic, and world heritage created artificially and naturally, with a high historical value as an important value of cultural heritage. Article 2-2 of the Act provides that the basic principles for the preservation, management, and utilization of cultural heritage shall include not only the original form of the cultural heritage in question but also the natural environment and surrounding landscape in which the cultural heritage is located. Articles 2(3) and 8 of the Act provide that the scope of the act of protecting the cultural heritage shall be designated as an "protection area, other than the area of possession," and Article 74(2) of the Act, Article 43-2(1) of the Enforcement Decree of the Act provides that the act of protecting the cultural heritage in question may affect the preservation of the cultural heritage in the outer boundary of the cultural heritage and the outer boundary of the protected area, and that the act of protecting the cultural heritage in question may affect the installation of the cultural heritage in question within 20 meters prior to the delegation of the Act.

Therefore, the court below's rejection of the plaintiff's assertion that it is invalid beyond the limit of this delegated legislation under Article 18-2 (2) 2 (c) of the former Enforcement Rule of the Act is just, and on the other hand, Article 18-2 (2) 2 (c) of the former Enforcement Rule of the Act is merely a specific provision for regulating certain acts under delegation under Article 20 (4) of the Act, and it cannot be said that the land owner's right to own property is restricted only by the Enforcement Rule of the Act, not by law. Thus, the court below's rejection of the plaintiff's assertion that it is invalid beyond the limit of this delegated legislation under Article 18-2 (2) 2 (c) of the former

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment of the court below and the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged the facts as stated in its decision, and rejected the plaintiff's claim seeking revocation of the disposition of this case which rejected the plaintiff's application for alteration of state-designated cultural heritage pursuant to Article 20 subparagraph 4 of the Act and Article 18-2 (2) subparagraph 2 (c) of the former Enforcement Decree of the Act on the ground that the construction of five single houses on the land of this case could impair the landscape of the old house and its protection zone adjacent to the adjacent State-designated cultural heritage. In light of the records, the fact-finding and decision of the court below is just, and there is no error of law such as misconception of facts due to violation of the rules of evidence and errors of law as to

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae- Jae (Presiding Justice)