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Constitutional Complaint against Article 21 of the Urban Planning Act

Tipo de la corte
Nacional - corte superior
Fecha
Dic 24, 1998
Fuente
UNEP, InforMEA
Nombre del tribunal
Constitutional Court of Korea
Juez
Yong-joon
Moon-hee
Jae-hwa
Seung-hyung
Kyung-sik
Joong-suk
Chang-on
Young-mo
Dae-hyun
Número de referencia
89Hun-Ma214 (1998) KRCC 2
Idioma
Inglés
Materia
Tierra y suelos
Palabra clave
Manejo de tierras Derecho constitutional Responsabilidad/indemnización Tenencia de tierras
Resumen

This case dealt with the constitutional right to property and its limits for reason of important public interest. The Constitutional Court had to decide about a complaint against Article 21 of the Urban Planning Act, which designated development-restricted zones and banned construction therein, among others in order to preserve the natural surrounding and obtain a healthy living space for the citizens. The court had to analyze whether or not Art. 21 was a constitutionally valid social restriction to the right of property according to the principle of proportionality. It held that as long as an Act allowed the original use of the land, it was merely a constitutional concretization of the social limit inherent in the right to property, which was consistent with the principle of proportionality. However, if the provision made such original use impossible and made any other feasible use or profiting of the land impossible, and yet did not provide compensation, it violated the principle of proportionality and excessively limited the landowner’s right to property. The development-restricted zone designation according to Art. 21 could make it impossible to use the land as it was used previously and could effectively eliminate all venues to use or profit from it. Such designation exceeded the limit of the social restriction that the landowner must accept. The legislature, in order to conform to the principle of proportionality, had to provide for a compensation provision that would alleviate the cruel burdens that the limitation could impose on them. Until the legislature cured the unconstitutional status of law by making a compensation statute, the court left the provision formally valid on a decision of nonconformity. The legislature had a duty to eliminate the unconstitutional element of the statute as soon as possible. In a dissenting opinion, Justice Cho Seung-hyung emphasized that Article 21 of the Urban Planning Act was a regulatory legislation necessary for the prevention of environmental pollution harmful to national security and the preservation of the city’s natural surroundings and its living area, and was therefore constitutionally valid.

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