주택법 제22조 제1항 제1호의 매도청구권의 합헌성에 대한 연구 ― 헌법재판소 2023. 8. 31. 2019헌바221ㆍ2021헌바269 결정의 평석을 겸하여 ―

The decision made by the Constitutional Court regarding whether the forced sale of land under Article 22 (1), subparagraph 1 of the Housing Act violates the property rights of landowners is reasonable, as it prioritizes the infringement on their property rights over other basic rights, such as the freedom to enter into contracts or the freedom of residence and movement, which are indirectly restricted in this case as part of the right to pursue happiness. This approach is valid, as the court specifically examined whether the landowners' property rights were violated, which are most directly impacted in this case. Moreover, the forced sale system under Article 22 (1), subparagraph 1 of the Housing Act is consistent with the principles outlined in Article 122 and Article 35 (3) of the Constitution. These articles allow the state, local governments, and other public institutions to support private developers in the construction and supply of housing for the public good. In this case, the housing construction business's public interest is recognized, and the government's involvement ensures the necessary land is secured for these projects, fulfilling the public welfare goals outlined in Article 37 (2) of the Constitution. Thus, this system does not violate the principle of proportionality, particularly the legitimate purpose principle. To further this public interest, the legislator has chosen a method through Article 22 (1), subparagraph 1 that allows private developers, having secured more than 95% of the land rights for the housing construction project, to forcibly request the remaining landowners to sell their land. This choice serves the public welfare by contributing to housing stability and the improvement of living conditions for many citizens. Therefore, it does not violate the principle of suitability or appropriateness in terms of the means or methods chosen to achieve the public good. Furthermore, the provisions of Article 22 (1), subparagraph 1 ensure that the forced sale process is carried out with multiple safeguards. These include a mandatory consultation period of at least three months, a two-month period for exercising the right to request the sale after the consultation, and the possibility for the court to grant an extension of up to one year for the landowner to vacate the land. Adequate compensation is also required. These measures minimize the potential infringement on the landowners' constitutional property rights, and therefore, the system does not violate the principle of minimal infringement. Additionally, the public interest in improving housing stability and quality through this housing construction plan outweighs the individual’s potential loss of property under the forced sale provision. The balance between these interests does not violate the principle of proportionality, which emphasizes a proper balance between public and private interests. Therefore, the Constitutional Court's decision in its ruling on August 31, 2023, in cases 2019HunBa221 and 2021HunBa269, which declared that the forced sale provisions of Article 22 (1), subparagraph 1 of the Housing Act do not violate the landowners' property rights and are constitutional, is sound. I agree with this conclusion.