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Study on The Constitutional Violation of Cost Opening of Private-Built Houses

  • Public Land Law Review
  • Abbr : KPLLR
  • 2012, 59(), pp.185-202
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Jeong Hoe Gun 1,  송현담 2

1남서울대학교
2대한주택건설협회

Accredited

ABSTRACT

In accordance with Article 23 and Article 119 of the Korean Constitution, it is declared that private property and private autonomy should be assured, and individuals and enterprises' economic freedom and creativity should be respected on the basis of free-market economic order. Besides, Article 15 assures the freedom of career choice including the freedom of career decision and the freedom of career performance as well as the freedom of business in a broad sense. According to the present Housing Act, it is compulsory to open even the parcel cost of apartment houses. The original purpose of this institution is to promote stability on the housing market by preventing homeless citizens from suffering financial damages and a wave of speculation caused by construction companies' excessive pricing. However, many questions have arisen about the effectiveness of this institution, especially whether opening the parcel price or parcel cost of houses, not market prices. Although construction companies' cost opening may not have direct effect on restricting the parcel price itself, it will have indirect effect on the pricing through a psychological pressure that they would be the target of public opinion. In this light, this institution not only limits construction companies' freedom of price decision, but constricts the construction industry, and another issue is that the parcel cost even includes a construction company's confidential business information used to maximize profits with the least expense. The cost opening institution for privately-built houses can be approved in terms of the legitimacy of its legislative purpose, but it doesn't seem to satisfy every requirements, such as the appropriacy of means, the balance of benefit and protection of the law and the minimization of damages, and is likely to violate the constitution by infringing the principle of proportionality (the principle of anti-overrestriction). In accordance with Section 1 and 2 of Article 119 in the constitution, it is ordered that the state consider the respect of economic freedom and creativity and the economic regulation and arbitration at the same time. Accordingly, taking such super-strong regulatory measures, called ‘Cost Opening of Privately-built Houses’ is judged inappropriate even from the standpoint of Article 119. Cost opening is not only unprecedented in the history of Korean economic legislation, but no one has adopted such an institution out of all the countries sustaining the capitalistic market-economy order. Therefore, in any other markets with the characteristics of public goods in addition to the housing market, such an institution cannot help being introduced and allowed for the normalization of markets. Eventually, introducing such a cost opening institution even into the sector of privately-built houses has high probability to excessively infringe the freedom of career performance, further violating the constitution. Moreover, due to the social binding of land property rights reinforced for publicly-built and privately-built houses, it is a consitutional demand to strengthen the security of private property system much more. Nevertheless, even into the sector of privately-built houses, whose legal structure is definitely different from that of publicly-built houses, introducing the cost opening institution is highly likely to violate basic legal rights. Overall, unlike that of publicly-built house construction, the sector of privately-built house construction is a domain where is mostly governed by high-degree principles of the market economy. Thus, forcing construction companies to open their parcel costs, which correspond to their confidential business information, through acts is likely to violate the constitution while infringing the principle of proportionality (the principle of anti-overrestriction), contrary to the realization of public interests through various real-estate policies and taxation policies. Therefore, it is required to take prompt legislative improvement measures likely to abolish this institution.

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