공공건설임대주택 관련법의 위헌성 및 개선방안 연구 — 구「임대주택법」의 ‘임차인 분양전환승인신청’ 제도를 중심으로 —

Abstract

Due to the failure of the government's housing policy, the housing problem of the homeless is spreading not only to the low-income class but also to the middle class. The supply of public rental housing is becoming very important in a situation where it is difficult to purchase privately because of the rapid increase in housing prices. However, legal disputes between tenants and rental business enterpriser are frequently occurring because of the lack of consistency and inadequacy of laws related to public rental housing. Apart from the meaning and importance of the Public Rental Housing Act, Article 21 (5) of the「Rental Housing Act」have a serious question of unconstitutionality, especially from the point of view of private rental housing supplier This study examines four points or reasons relating to the unconstitutionality of the tenant's right to buy for public rental housing under Article 21 (5) of the「Rental Housing Act」. And it was confirmed that it was unconstitutional. 1. There is a problem in applying the amended law even to rental houses that have met the mandatory rental period before the amendment of the law. This does not respect the protection of trust in the Constitution. In addition, there is a problem of unconstitutionality that goes against Article 13(2) of the Constitution, which prohibits the deprivation of property rights. 2. It discriminates without rationality between a private rental business enterpriser that has supplied public rental housing in accordance with the Rental Housing Act, and a public housing business enterpriser that is working on the same project or a similar business enterpriser in accordance with the「Special Act on Private Rental Housing」. This violates the “principle of equality” in the Constitution and the basic right of the people, the right to equality. 3. This does not have any restrictions on the period for exercising the right to buy for public rental housing. Therefore, this excessively violates the property rights(Article 23(1) of the Constitution) and freedom of economic activities(Article 119(1) of the Constitution) of private rental business enterpriser. 4. This was enacted for unreasonable reasons, and it violates the 'principle of prohibition of excess' of Article 37(2) of the Constitution, which must keep the principle of 'minimum damage' caused by excessive regulation. The purpose of public housing policy is primarily for the socially underprivileged who are homeless. However, if the law excessively discriminates against private rental business enterpriser by way of excuse for the legitimacy of its purpose, it is not in line with the definition and direction of the law, which always have balance and harmony. If the law is out of balance, private rental business enterpriser will not be able to participate in public rental housing construction projects, and as a result, there will be a shortage of public rental housing supply. This can lead to housing instability for the tenant. Therefore, there is a need to improve the unconstitutional elements related to Article 21 (5) of the「Rental Housing Act」.