Due to the failure of the government's housing policy, the housing problem of the homeless is spreading not only to the low-income class but also to the middle class. The supply of public rental housing is becoming very important in a situation where ...
Due to the failure of the government's housing policy, the housing problem of the homeless is spreading not only to the low-income class but also to the middle class. The supply of public rental housing is becoming very important in a situation where it is difficult to purchase privately because of the rapid increase in housing prices.
Public rental housing policies are very important to realize the people's right to housing. This study examines the ambiguity and unconstitutionality of the current legal system and regulations related to the public rental housing. The review of unconstitutional elements is based on the provisions of Article 21 of the 「Rental Housing Act」 and Article 50-3 of the 「Special Act on Public Housing」. The main contents of the study focus on the ‘priority sale conversion’ system of public rental housing, the ‘sale conversion approval application’ system for the tenant's right to buy the public rental housing, and the ‘sale conversion price’ system of the 「Special Act on Public Housing」.
First, this study examines three points or reasons relating to the unconstitutionality of the ‘priority sale conversion’ system under Article 50-3 of the 「Special Act on Public Housing」.
1. Article 50-3(1) Paragraph 1 D of the 「Special Act on Public Housing」 is not appropriate as a person for the ‘priority sale conversion’. Even though they are not homeless, they have got excessive housing welfare benefits.
2. Article 50-3(4) of the 「Special Act on Public Housing」 is unconstitutional as it gives the right to buy at the same price as the person who gets the ‘priority sale conversion’ to a third party. This has unconstitutional elements in terms of reliability in public policy, balance of legal interests, and minimal infringement of property rights.
3. Additional rules Article 6(1) is questioned when considering the balance between reasons of public interest and the request for trust protection. It is inappropriate to get the same retroactive application to public rental housing that is maintained as a long-term lease.
Second, This study examines four points or reasons relating to the unconstitutionality of the tenant's right to buy for public rental housing under Article 21 (5) of the 「Rental Housing Act」. And it was confirmed that it was unconstitutional.
1. There is a problem in applying the amended law even to rental houses that have met the mandatory rental period before the amendment of the law. This does not respect the protection of trust in the Constitution. In addition, there is a problem of unconstitutionality that goes against Article 13(2) of the Constitution, which prohibits the deprivation of property rights.
2. It discriminates without rationality between a private rental business enterpriser that has supplied public rental housing in accordance with the Rental Housing Act, and a public housing business enterpriser that is working on the same project or a similar business enterpriser in accordance with the 「Special Act on Private Rental Housing」. This violates the “principle of equality” in the Constitution and the basic right of the people, the right to equality.
3. This does not have any restrictions on the period for exercising the right to buy for public rental housing. Therefore, this excessively violates the property rights(Article 23(1) of the Constitution) and freedom of economic activities(Article 119(1) of the Constitution) of private rental business enterpriser.
4. This was enacted for unreasonable reasons, and it violates the 'principle of prohibition of excess' of Article 37(2) of the Constitution, which must keep the principle of 'minimum damage' caused by excessive regulation.
Third, it was confirmed that there were some unconstitutional elements in Article 50-3(5) of the 「Special Act on Public Housing」 related to the sale conversion price of public rental housing.
1. Article 50-3(5) of the 「Special Act on Public Housing」 is comprehensively entrusted with the Enforcement Decree without setting any the calculation criteria or scopes related to the sale conversion price. And the Enforcement Decree is also comprehensively re-delegating to the Enforcement Regulations as it is. As a result, the enforcement regulations are required to determine the essential matters that limit the property rights of the people. This violates ‘the principle of reservation of law’, which states that the legislator must directly decide the essential matters related to the restriction of the people's basic rights by law.
2. Based on the provisions of Article 75 of the Constitution, Article 50-3(5) of the 「Special Act on Public Housing」 does not distinguish between the calculation criteria for pre-sale conversion price and general sale conversion price. In addition, it is thought that there is a fundamental problem in this, as it comprehensively entrusts the “price, etc.” only to be determined by the enforcement decree without providing any criteria. Therefore, this violates the “comprehensive non-delegation principle” of Article 75 of the Constitution(“the President may issue presidential decrees concerning matters delegated to him/her by Act with the scope specifically defined and also matters necessary to enforce Acts”).
3. The meaning of “price, etc.” in Article 50-3(5) and the sub-regulations of the 「Special Act on Public Housing」 is not clear. Due to the ambiguity in the meaning of ‘price, etc.’ when calculating the conversion price for sale, legal conflicts between rental companies and lessees are increasing. This violates ‘the principle of legislative clarity’, which is the basic principle of a state governed by law as set forth in the Constitution.
4. The uniform regulation of the criteria for calculating the conversion price for sale of public rental housing excessively limits property rights, which are the basic rights of rental business owners. This violates the 'the principle of minimal infringement' and ‘balance of legal interests’ as stated in the Constitution.
In addition, this study suggested a direction for improving the unconstitutionality of Article 21 of the 「Rental Housing Act」 and Article 50-3 of the 「Special Act on Public Housing」.