Although the government has declared the application of an extension of the 'premium price limit', which directly regulates the sale of private apartments in order to secure home prices, the possibility of constitutional wishes for retroactive and infringement of property rights has been raised, especially in reconstruction complexes where projects were carried out until just before general sale. It becomes.

The government dismisses the unconstitutional debate that "the benefits of reconstruction members are expected profits, not property rights, and the stability of housing is greater."

The legal profession is a very similar case, considering that unconstitutional opinions were squeezed during the 2008 Constitutional Court's decision on retroactive housing construction for reconstruction complexes.

Rather, there are opinions that there is more unconstitutional factor in retroactive application of the pre-sale cap than in 2008.

The most controversial part of the 'Improvement of the Sale Price Limit System' announced by the Ministry of Land, Infrastructure, Transport and Tourism on December 12 is the time when the presale price limit system can be applied to the reconstruction and redevelopment apartment complex of a private house. Was delayed to "Just apply for approval for first time residents."

Housing maintenance projects such as reconstruction and redevelopment go through the following steps: designation of maintenance area, composition of promotion committee, approval of establishment of union, approval of project execution, approval of management disposal plan, and start of construction. This means that even complexes that have been approved for disposal plan and have been moved and removed from existing residents will be regulated.

If the sale price of a general presale product falls under the upper limit of the sale price, members of the reconstruction and redevelopment complex that had previously been approved by the management disposal plan will be expected to reduce their expected profits and increase the burden due to retroactive legislation. Affecting) and infringement of property rights and equal rights.

Regarding retrospective, there is no great disagreement in the legal profession that this issue is a negative retroactive legislation.

Retroactive legislation includes a "true retroactive" that governs the fact-legal relationship already completed in the past, and a "negative retroactive" for the fact-legal relationship that is in progress.

In the amendment to the Enforcement Decree of the Housing Act on the upper limit of the sale price, the interpretation of the law is that the law is not a 'retroactive retroactive' legislation that the Constitution explicitly prohibits because it is not a 'general sale completion' complex.

The legal deficiency, such as the unconstitutionality of `` negative retroactive legislation, '' is to compare the rights of individuals infringed by the legislation (property, equal rights, etc.) with the public interests that can be expected by legislation. Is determined by sizing the legal benefit of

In other words, this means that the sale will be unconstitutional regardless of whether it is greater than the basic rights of individuals such as members whose public interest is violated, such as housing stability that can be achieved by retroactive application of the cap.

The legal theory is that at least the government's "public interest" justification does not deny all legal disputes.

The legal profession considers the 2008 Constitutional Court's decision on the Urban and Residential Environment Improvement Act (Hunma 222, 2005) as the most similar to the unconstitutional controversy, such as the retroactive limit of the presale price limit and the violation of basic rights.

At the time, the government revised the law and related decrees to make rental housing mandatory within 25% of the increase in the volume of rebuilding projects for the purpose of recovering profits from reconstruction projects and supplying public rental housing.

However, at the stage of reconstruction, even the complex that received the 'Administrative Disposal Plan' was subject to this law, and some reconstruction associations demanded a constitutional appeal judgment for retrospective and infringement of basic rights such as property rights and equal rights.

Only the government-sponsored policy changed to 'mandatory rental housing' and 'upper sale price', and retroactively applied to the disposal plan approved for reconstruction, reducing the interests of reconstruction members. It's the same issue.

As a result, five out of nine constitutional judges rejected the constitutional opinion, but four of the judges decided that the reconstruction union's argument made sense, and raised the unconstitutional opinion.

The constitutional comments relate to the comparison of profits (financial) under the negative status of the vice, and the expectation of the union, because it is not possible to determine the amount of expenses or profits from the reconstruction business until the completion of the general sale and the closing of the liquidation process. "No benefit or trust benefit (an estimate of what we believe in maintaining the existing system) is absolute."

In addition, the constitutional side said, “On the contrary, the obligation to supply reconstruction rental housing violates the trust protection principle as the public interest to achieve in terms of stabilizing housing prices and mitigating housing shortages by suppressing speculative demand is much larger than the interests of stakeholders' trust. It's not a property infringement. "

This is in line with the logic of the Department of Homeland Minister Kim Hyun-mi, Deputy Minister Park Sun-ho, and housing policy and staff since the announcement of the ceiling on the sale price.

Kim appeared on a radio program last Friday and said, "When I get permission from a management plan, I get an interpretation of the legislative agency's vote that I can't say it's retroactive, because the expected sale price is not a fixed profit. "He emphasized.

However, four Constitutional Judges who unconstitutionally voted in the Constitutional Court of Justice in 2008 found that the public interest was not large enough to violate individual basic rights.

First of all, the unconstitutional opinion is about the property rights of members in the management disposal plan approval stage. If the management disposal plan is approved or notified, the amount paid by the members of the reconstruction project will be determined. Authorization and notification converts existing land and building ownership rights to land and building sales rights. These rights are, in principle, specific rights that imply private usefulness and disposal rights, corresponding to constitutional property rights. ”

In addition, in terms of trust protection, "in addition, according to the administrative act of authorization of management disposal plans (members and project operators) have confidence in the ownership of the land and buildings to be sold, the degree of protection of trust is great." He also emphasized the need for protection of those who believed in existing government policies and laws and carried out the project.

In addition, the unconstitutional opinion pointed out that as the demolition begins with the approval and notification of management disposal plan, even if the member's contribution increases due to policy and law changes, the opportunity to oppose reconstruction or to withdraw the business is lost.

The four Constitutional Judges compared the profits (financial) comprehensively and said, "Tenant housing stability is a policy task that the state should resolve in principle by expanding the supply of rental housing. It cannot be resolved, ”he said.“ It is difficult to form a close or significant public interest that should be pursued while ignoring the trust of members until the approval of the disposal plan is already confirmed. .

The legal profession is postponed to the 2008 Constitutional Tribunal, but the opinion that there is more unconstitutionality of the cap on the sale price.

This is because there is no policy of caring for complexes with the approval of the management disposal plan, and the public interest goal of stabilizing house prices, which the government proposes as a retroactive cause with a pre-sale upper limit, is unknown.

Attorney Jang Il-hong said, "This was the main basis for the constitutional decision, since the case of the 2008 Constitutional Court was approved by the Administrative Disposal Plan. There is no such differential consideration in the pre-sale cap. "

"In addition, it was clear that the public interest of 'rental housing supply' in 2008 would be achieved by regulations at that time (mandatory supply of rental housing for rebuilding complexes), but it is not certain whether the stable price of housing, the public interest pursuant to this amendment, will be achieved by the upper limit of the sale price. It's hard to say that even if the constitution is raised, it's harder to foresee the outcome, because it's hard to say that the sale is a public benefit that can only be achieved with caps. "