Supreme Court Full Bench
Decision 98Du6265 Delivered on October 19, 2000 [Revocation of Disposition
Rejecting the Diversion of Farmland Use]
[Main Issues]
[1]
Scope and review criteria for statutory delegation for matters to be decided by
a presidential order
[2]
Effect of Item 1 of Article 41
of the Executive Order[appended Table 1], which limits the farmer's
housing subject to report diversion of farmland use, as farmer's housing to be
established "outside the agricultural development area" (invalid)
[Summary of Decision]
[1]
Under
Article 75 of the Constitution, the statutory delegation on matters
to be decided by the presidential decree, must be
determined within an established and concrete limit. The "established and
concrete limit" here, means stipulating in advance elements regarding the
purpose, content and scope of delegation as well as purpose and criteria, etc.
of an administrative legislation under that delegation. In determining whether
such delegation exists, aside from the form and content of the direct delegate
Article, the general system, intention, purpose, and etc. of the concerned act
must also be put into consideration. In addition, even though the required
level of specification may vary according to the type and nature of the
restriction, regarding matters restricting, or matters likely to restrict the
basic rights of the people, the abovementioned level of specification or
clarity required, are very strict.
[2]
Matters regarding the 'installation area' for facilities such as farmers'
houses, are interpreted as not being included in 'the scope and scale of the
facilities subject to a report and the scope of the installers' of Article 37(2) as matters
to delegate, because of the following reason: since the restriction on the
diversion of the use of farmland limits the peoples' right to exercise their
property rights, it is obvious from the earlier legal reasoning that the
delegation on matters which is to be described in the executional
decree shall be concrete and clear; however, even by literal interpretation,
matters regarding 'the installation area' of facilities such as farmers'
houses, does not fall under the extent or scope of facilities for a report or
the scope of an installer; in addition, with respect to approvals of the
diversion of the use of farmland, it corresponds to a separate standard
independent from the elements mentioned above. As the provision in question
based on Article of 37(2),
prescribes farmers' houses subjected to report the diversion of the use of
farmland as farmers' houses built "outside the agricultural development
area," in regard to farmers' houses built inside the agricultural
development area, the approval needs to be decided after carefully reviewing
the following aspects: value for preservation as a farmland, maintenance of
both agricultural management and living environment of agricultural and fishing
villages, as stated in Article 39
of the Act and Article
37 and Article 38 of
the Order, thereby further restricting the people's right to exercise
their property rights without any delegation from the law, and therefore this
portion must be seen as being invalid.
[Reference Provisions]
[1] Article 75 of the
Constitution / [2] Article 36, Article 37 (2), Article 39 of the Farmland Act,
Articles 37, 38, 41 [Appended Table 1] 1 of the former Enforcement Decree of
the Farmland Act (amended by the Presidential Decree
No. 15229 of December 31,
1996)
Article 75 of the Constitution The
President may issue presidential decrees concerning matters delegated to him by
Act with the scope specifically defined and also matters necessary to enforce
Acts.
Article 36 of
the Farmland Act (Permission
and Consultation on Diversion of Use of Farmland) (1) A person who desires to divert the use of
farmland shall obtain the permission of the Minister of Agriculture and
Forestry via the confirmation of it by the Farmland Administration Committee
which exercises jurisdiction over the area where the farmland in question is
located under the conditions as prescribed by the Presidential Decree, except
for the cases of the following items. The same shall also be applicable to the
case he intends to alter the permitted matters:
1. Where the diversion of
the use of farmland is to be made via the consultation as set forth in other
Acts that is legally fictionalized as permitted to divert it;
2. Where the diversion of
use is to be made for the farmland that passed through the consultation as
prescribed in paragraph (2) or for the farmland that was excluded from the
objects of the consultation in accordance with the proviso of paragraph (2) 1,
both of which are located in the urban area under the National Land Planning
and Utilization Act;
3. Where the diversion of
the use of farmland is to be made after the report on the diversion in question
is made in accordance with Article 37;
4. Where the farmland
illegally reclaimed is to be restored into forest without obtaining permission
for the diversion of a mountainous district and filing a report thereon
under the Arrangement of
Fire-farmland Act; and
5. Where the diversion of
the use of farmland is to be made in order to change the shape or quality of the
land or to install a construction with the necessary permission obtained from
the River Management Office in accordance with the River Act.
(2) In one of the
following cases, the competent Minister or the head of the local government
shall consult, in advance, with the Minister of Agriculture and Forestry about
the diversion of the use of farmland, under the conditions as prescribed by the
Presidential Decree:
1. In designating or
deciding the residential area, commercial area, industrial area, or urban
planning facilities, within the urban planning area under the Land Planning
Act, where farmland is included in the said area(s) or in the building site of
the said facilities to be installed: Provided, That this shall not apply to the
case where the already designated residential area, commercial area or
industrial area is to be changed into an area of another purpose or the case
where urban planning facilities are decided to be installed in the residence
area, business area, or industrial area which has already been designated; and
2. Where the permission
for changing the shape or quality of the land is given under Article 4 of the
Urban Planning Act to the farmland located in the green-belt region, the
restricted development area, and the scheduled urban development area.
Article 37 of
the Farmland Act (Report
on Diversion of Use of Farmland) (2)
Necessary matters concerning the scope and scale of the facilities subject
to a report, or the scope of the installers, etc. as prescribed in paragraph
(1), shall be prescribed by the Presidential Decree.
Article 39 of the Farmland Act (Restriction on
Permission of Diversion of Use of Farmland) (1) In giving the permission on the
diversion of the use of farmland in accordance with Article 36(1), the Minister
of Agriculture and Forestry shall not permit the diversion of use if the
farmland to be used as the building site of the facilities of one of the
following items except for the farmland within the urban region, the quasi-urban
region under Article 6 of the National Land Utilization and Management Act:
1. Such facilities as
prescribed by the Presidential Decree from among the air pollutants discharge
facilities as set forth in item 9 of Article 2 of the Clean Air Conservation
Act;
2. Such facilities as are
prescribed by the Presidential Decree from among the wastewater discharge
facilities as prescribed in item 5 of Article 2 of the Water Quality
Conservation Act; and
3. Such facilities as are
prescribed by the Presidential Decree from among the facilities which are
apprehended to be possibly in the way of the agricultural development or the
preservation of farmland.
(2) In one of the
following cases, the Minister of Agriculture and Forestry and the head of
Shi/Kun/autonomous Ku may put a restriction on the diversion of the use of
farmland or the temporary use of farmland for other purposes when giving the
permission on or consulting about the diversion of the use of farmland in
accordance with Article 36 (including the consultation that is fictionalized as
the diversion of the use of farmland by other Acts) or when giving the
permission on or consulting about the temporary use of farmland for other
purposes in accordance with Article 38:
1. In a case where the
farmland the use of which is desired to be diverted is the farmland which is
needed to be preserved as the farmland of a superior quality since the
agricultural production infrastructure has been constructed for it or since it
is incorporated into the region for which a project of constructing the
agricultural production infrastructure is scheduled to be executed;
2. In a case where the
diversion of the use of the farmland concerned or the temporary use of the said
farmland for another purpose is to remarkably influence the agricultural
management of the farmland in its neighborhood by hindering, seriously, the
exposure to the sunshine, the ventilation or the general cultivation, or by
resulting in the removal of farmland improvement facilities;
3. In a case where the
diversion of the use of the farmland concerned or the temporary use of the said
farmland for another purpose is apprehended to bring about outflow of clay and
sand causing, thereby, some damage on the farmland or the farmland improvement
facilities in its neighborhood;
4. In a case where the
project design and the plan of supplying the necessary fund for the realization
of the diversion of the use of farmland, are not clear and plausible enough;
and
5. In a case where the
size of the area subjected to the intended diversion of the use of farmland is
larger than that needed to realize the intended diversion.
Article 37 of the former Enforcement Decree of the Farmland Act (amended by the
Presidential Decree No. 15229 of December 31, 1996) (Application for Permission
of Diversion of Use of Farmland) (1) A person who desires to obtain the
permission for the diversion of the use of farmland or the permission for
alteration of it shall submit an application form for the diversion of the use
of farmland, attaching documents required under the Order of the Ministry of
Agriculture and Forestry to the Farmland Administration Committee which
exercises jurisdiction over the area where the farmland in question is located.
(2) The head of the
Farmland Administration Committee, when received the application documents
under paragraph 1, shall make the Farmland Administration Committee(in case
where a subcommittee under paragraph 4 of Article 47 is created, the
subcommittee) confirm it in view of the following criteria for identification
in items.
1. Whether in the
farmland the use of which is desired to be diverted, the agricultural
production infrastructure such as readjustment of arable land, irrigation
facilities is constructed.
2. In case where due to
the diversion of farmland causes change or abolition of the farmland
improvement facilities or the road, or an outflow of clay and sand, wastewater
discharge, the generation of malodor, etc., damages over agricultural management of the farmland
in its neighborhood and maintenance of living environment in Agricultural and
Fishing Villages are expected, whether the damage prevention plan is
established
3. In the case of the
projects for the purpose of which the diversion of the use of farmland is to be
made causes taking in water, whether the time, method, amount, etc. of it are
expected to damage agriculture and fishery or maintenance of living environment
in Agricultural and Fishing Villages
(3)The head of the
Farmland Administration Committee, when finishing the confirmation under
paragraph (2), shall send the documents submitted under paragraph (1) attaching
a confirmation document of the Farmland Administration Committee where the
result is written to the head of Shi/Kun/Ku within 5 days from the date of application(in case where he specially demands
supplementation or correction, the date on which supplementation or correction
has been completed)
(4) In case where the
head of the Farmland Administration Committee identifies faults in the
documents submitted under paragraph(1), he or she
shall ask the applicant to supplement or correct it without delay designating
an appropriate time limit for supplementation or correction. In this case,
request for supplementation or correction shall be performed by documents, oral
statements, telephone, or fax, and if the applicant specially requests, it
shall be performed by documents.
Article 38 of the former Enforcement Decree of the Farmland Act (amended by the Presidential
Decree No. 15229 of December 31, 1996) (Review for Permission of Diversion of
Use of Farmland) (1) In case where the head of Shi/Kun/Ku is received an
application form for the diversion of the use of farmland, etc. under paragraph
(3) of Article 37, he shall, after reviewing it in view of criteria in the
following items, send it, attaching documents required under the Order of the
Ministry of Agriculture and Forestry to the head of Shi/Do within 15 days from
the date of the receipt of documents(in case where he demands supplementation
or correction over application documents pursuant to paragraph (3), the date on
which supplementation or correction has been completed), and the head of Shi/Do
shall submit it, attaching a synthetic review statement concerning it to the
Minister of Agriculture and Forestry within 10 days.
1. whether
to violate Article 39
2. whether
the farmland the use of which is desired to be diverted can be used in
accordance with the projects for the purpose of which the diversion of the use
of farmland was made
3. whether
the size of the farmland the use of which is desired to be diverted is
appropriate for realizing the projects for the purpose of which the diversion
of the use of farmland is to be made
4. each
item of Article 37(2)
(2) In case where it is
not accordant with the standards for review under paragraph (1), the Minister
of Agriculture and Forestry shall not permit the diversion of the use of
farmland.
(3) In case where the
head of Shi/Do or Shi/Kun/Ku reviews pursuant to paragraph(2), the provisions
of Article 37(4) shall apply mutatis mutandis to supplementation or correction
of the faults in the documents which an applicant has submitted. In this case,
if not supplemented or corrected within the period for which supplementation or
correction is required, he or she may return the application documents.
Article 41 of the former Enforcement Decree of the Farmland Act (amended by the
Presidential Decree No. 15229 on December 31, 1996) (Scope of Diversion of Use
of Farmland by a Report) The scope and scale of the facilities subject to a
report on the diversion of the use of farmland, or the scope of the installers,
etc. under Article 37(2) shall be as the following appended Table 1.
{The scope and scale, etc.
of the facilities subject to the report on the diversion of the use of farmland
(related to Article 41)}
|
The
scope of the facilities |
the
scope of the installers |
the
scale |
|
1.farmers'
houses in accordance with
paragraph (4) of Article 34, which are built outside the agricultural
development area |
a
head of household who does not own house under each item of paragraph (4) of
Article 34 |
not
more than 660m2 by the household |
2.-9. <omitted>
<note>
1. <omitted>
2. The facility
corresponding to item 1. is limited to the first facility which a builder has
built, and when applying the scope of facilities under item 2 through item 9,
and it shall be total areas of which the builder of facilities concerned has
diverted the use to the site of facilities for 5 years before the date of the
report on the diversion.
3. The facilities
prescribed in item 1, item 3, item 6, and item 9 do not include facilities in
the agricultural development area.
[Plaintiff-Appellee] Shin Man-gon
[Defendant-Appellant] Mayor of
[Judgment of the court below] Daegu High Court Decision
97Gu4327 delivered on February 27, 1998
[Disposition]
The
appeal shall be dismissed. All costs of this appeal are assessed against the
defendant-appellant.
[Reasoning]
Under Article 75 of the Constitution,
the statutory delegation on matters to be decided by the presidential decree
must be determined within an established and concrete limit. The
"established and concrete limit" here, means stipulating in advance
elements regarding the purpose, content and scope of delegation as well as
purpose and criteria, etc. of an administrative legislation under that
delegation. In determining whether such delegation exists, aside from the form
and content of the direct delegate Article, the general system, intention,
purpose, and etc. of the concerned act must also be put into consideration. In
addition, even though the required level of specification may vary according to
the type and nature of the restriction, regarding matters restricting, or
matters likely to restrict the basic rights of the people, the abovementioned
level of specification or clarity required, are very strict.
Article 36(1) of the Farmland Act (hereinafter
referred to as "the Act") stipulates that to divert the use of
farmland in principle requires the permission of the authorized administrative
agency, and item 3 lists the exceptions to this principle, where only reporting
the diversion of the use of farmland will suffice. Article 37(1) regulates,
when diverting the use of a farmland into certain facility sites, the diversion
is possible with only a report of the diversion of the use of farmland, the
certain facilities here, being: facilities for agricultural purpose, facilities
of processing or distributing agricultural-fishery products, convenience
facilities for the farmers' societies, research facilities related to
agriculture and fishery, and fishery facilities and "farmer's
houses." Paragraph (2)
delegates matters concerning "the scope and scale of the facilities
subject to a report" and "the scope of the installers" to a
Presidential Decree. Table 1 of
Article 41(hereinafter referred to as "the provision in
question of this case") of the executive order(mandated
by Presidential Decree No.15229 of Dec. 31, 1996; hereinafter referred to as
"the Order") pursuant to the regulations mentioned above, states that
the farmers' houses as being the "farmers' houses in Article 34(4) of the
presidential decree which are built outside the agricultural development area."
However,
matters regarding the "installation area" for facilities such as
farmers' houses, are interpreted as not being included in "the scope and
scale of the facilities subject to a report and the scope of the
installers" of Article
37(2) as matters to delegate, because of the following reason: since
the restriction on the diversion of the use of farmland limits the peoples'
right to exercise their property rights, it is obvious from the earlier legal
reasoning that the delegation on matters which is to be described in the executional decree shall be concrete and clear; however,
even by literal interpretation, matters regarding 'the installation area' of
facilities such as farmers' houses, does not fall under the extent or scope of
facilities for a report or the scope of an installer; in addition, with respect
to approvals of the diversion of the use of farmland, it corresponds to a
separate principle standard independent from the elements mentioned above.
Therefore,
as the provision in question based on Article 37(2), prescribes farmers' houses
subjected to report the diversion of the use of farmland as farmers' houses
built 'outside the agricultural development area', in regard to farmers' houses
built inside the agricultural development area, the approval needs to be
decided after carefully reviewing the aspects of: value for preservation as a
farmland, maintenance of both agricultural management and living environment of
agricultural and fishing villages, as stated in Article 39 of the Act and Article 37 and Article 38 of the Order, thereby further
restricting the people's right to exercise their property rights without any
delegation from the law, and therefore judgement
relevant to this portion must be seen as having no effect.
Therefore,
the defendant's refusal to permit the plaintiff's application for the diversion
of the use of the present case's farmland into the construction of farmer's
housing, on the basis that the diversion of farmland in the agricultural
development district of this case, requires permits of the provision in
question, without having reviewed whether the plaintiff's application meets the
requirements of the condition where a report on the diversion of the use of
farmland suffice when deciding whether to accept the application, is illegal on
the grounds that it was conducted without any basis on law.
The
court below's decision affirming the plaintiff's
claim under these same reasoning, has justifiable ground and there has been no
illegality, concerning any misunderstanding of legal reasoning of Article 37(2), etc., as
claimed in the reason for appeal.
Accordingly,
the appeal shall be dismissed and all cost of the appeal are
assessed against the losing party. It is so decided as
per Disposition by the assent of all Justices who reviewed the appeal.
Chief
Justice Choi Jong-young
(Presiding Justice)
Justices
Song Jin-hoon (Justice in charge)
Suh Sung
Cho
Moo-jeh
Yoo Ji-dam
Yoon
Jae-sik
Lee
Yong-woo
Bae Ki-won
Kang
Shin-wook
Lee
Kyu-hong
Lee
Kang-kook
Sohn Ji-yol
Park
Jae-yoon