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A Study on the Unconstitutionality of the Acts Governing Large-scale Urban Development Projects

  • Public Land Law Review
  • Abbr : KPLLR
  • 2015, 71(), pp.179-206
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim,Jong Ha 1

1목원대학교

Accredited

ABSTRACT

In the midst of such social and economic change, a seemingly contradictory phenomenon is taking place: the scope of public projects and public necessity is gradually expanding. Providing legal justifications for monopolistic pursuits of private interests by the capital despite the aforementioned change poses the risk of violating the spirit of the Constitution, and infringing upon the fundamental rights of South Korean citizens. Therefore, the related Acts need to be revised as follows. Firstly, the unclear texts used in Acts governing the scope of public projects introduce the possibility of arbitrary interpretation and discretion by those who enforce the Acts. Such interpretation and discretion would be unconstitutional, especially since the core of the Constitution lies in the rule of law. Therefore, the principle of clarity of law must be maintained when regulating the scope of public projects. Secondly, when deeming a project as recognized, the Acts need to require procedures corresponding to the project recognition procedures, to ensure the objectivity of project recognition. Such project recognition constitutes an individual․ specific disposition. Therefore, prior notification, notice of disposition, and other measures related with the deeming procedures need to be prescribed by the relevant Acts. In addition, the Acts should require such deemed recognition to go through opinion gathering at local councils and review/resolution by land tribunals, so as to ensure the objectivity and legality of project recognition. Thirdly, consent procedure can be regarded as a means to retain the public aspect of a private project. However, the consent procedure for expropriation method undermines the predictability of right holders, because they are required to consent without being briefed on the plan for compensation. Therefore, when holding a public display or public briefing for designation of an urban development zone, a compensation briefing needs to be held under the supervision of the person with the authority to designate such zone, so as to promote the predictability on the part of the right holders. Fourthly, under the Urban Development Act, reference dates for inhabitants migration measures are prescribed by directives. However, a reference date is a crucial criteria for determining whether a person is subject to a migration measure, and therefore affects the property rights of all citizens. Prescribing such critical dates through directives, without delegation from an Act, is unconstitutional. The dates must be prescribed by the relevant Acts. Fifthly, Although it would be impossible to apply the same migration measures to all projects, the relevant Acts need to reduce the scope of the discretion of the project undertakers and ensure the objectivity of the projects, by defining the criteria for establishing migration measures and the methodological principles, and providing for the establishment of councils consisting of inhabitants and experts to ensure proper establishment of migration measures.

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This paper was written with support from the National Research Foundation of Korea.
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