Country
Republic of Korea
Sources
InforMEA
Tagging
Property, Administrative
Abstract

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.

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.

(Source: Republic of Korea Supreme Court,  http://library.scourt.go.kr/SCLIB_data/decision/2-1%20Supreme%20Court%20Full%20Bench%20Decision%2098Du6265%20Delivered%20on%20October%2019.htm, last accessed 18/07/2018)