판례평석: 주택재건축사업상 임대주택공급의무제도와 개발이익의 환수 ― 대상결정 : 헌법재판소 2008. 10. 30. 선고 2005헌마222등 결정 ―

An explanation of the System for Mandatory Provision of Rental Houses in the Residential Reconstruction Project by the Urban and Housing Environment Improvement Act (hereafter referred to as “the System”) is that when reconstruction is performed in certain areas, the main contractor must provide the public with rental houses in the area of 25% of the increment of floor space index by the project. The System was introduced in March 18, 2005, by an amendment of the Urban and Housing Environment Improvement Act, when it seemed that the price of housing, especially that of apartments to be rebuilt, was going to rise drastically with the goal of stabilizing the price with the goal of stabilizing the price, even at the expense of other policies. However, a law that regulates the provision of rental houses for the purpose of stabilizing housing prices is rarely found in other parts of the world. The National Assembly likewise abolished the revised provisions introduced in the System for the reason that the System was excessive and unreasonable. Here, some questions arise: Is it not restricted to use the System, which had been used for other purposes, as the measure to stabilize the real estate market or tool for the recapture of the profit obtained by the development? If it cannot be used without limitation, what is the constitutional limit? The answers to these questions not only provide the criteria for the judgment of the constitutionality of various measures regarding the recapture of profit obtained by the development, but also render considerations that must be taken into account when preparing future measures for the profit recapture. Thus, one might wonder what reasons the Constitutional Court of Korea had presented for constitutionality of the provisions that regulated the System six months before it was abolished for being excessive. In this article, I have investigated the reasons why the Constitutional Court of Korea decided that the System was within the constitutional limit, and I have discussed whether the decision can be regarded as right. In conclusion, the System is not a “direct measure for the profit recapture” that was aimed to recapture the development profit itself for profit recapture, but an “indirect measure for the profit recapture” through which the equivalent effect of development profit recapture was achieved by means of the financial load engaged for other purposes. However, an “indirect measure for the profit recapture” should not only cause a financial load, but also be appropriate and effective for another purpose of the regulation (e.g., housing stability of the tenants who do not possess their own homes, residing in the areas of reconstruction, in case of the System) in addition to the profit recapture. Otherwise, it may be abused to pervert the limit of constitution for the system of “direct measure for the profit recapture,” for which the development profit must be estimated precisely. However, the System did not meet this requirement. Based on this, it is concluded that the Constitutional Court of Korea must have decided that the provisions in the Urban and Housing Environment Improvement Act that regulated the System were unconstitutional.