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Abstract

This article discuss the case(the Constitutional Court 2009. 9. 24. 2007heonba114 decision) where the Constitutional Court decided whether or not a private enterprise can exercise the right of compulsory purchase as a principal agent, and on which terms such a compulsory purchase can be justified. The dispute on constitutionality arose with regard to the Industry Location Act which grants the private enterprise the right of compulsory purchase. The Constitutional Court found it constitutional by majority. The majority opinion and the dissentient opinion fall together in that the private enterprise can act as a principal agent of compulsory purchase, profit-seeking activities contributing to economic development may satisfy the requisite of public need of compulsory purchase, and such a compulsory purchase require devices securing public interests. However, There is a disagreement on which one should be put first between the value of public interests achieved by private enterprises’ profit-making activities and the value of land ownership. The majority view prefers the former, while the dissentient one does the latter with the result that it points out the lack of stricter legal tools guaranteeing public interests in the Industry Location Act. However, the majority opinion may be subject to the following limitations. First, it is difficult to consider a substantial part of the devices which the majority opinion thinks secure public interests as applicable especially to private enterprises’ compulsory purchase. It is because those apply also to usual development planings or compulsory purchases. The devices securing public interests in the Industry Location Act seems less sufficient in comparison with the Special Act on Enterprise City Development which in fact allows private enterprises’ compulsory purchase. Second, the majority opinion takes the view that the requisite of acquiring land is irrelevant to judging the constitutionality of compulsory purchase. However, such a requisite play the role of striking a balance of interests between the private enterprises of compulsory purchase and land owners. Furthermore, the case was caused mainly by the lack of the requisite with the result that land owners had no room at all for negotiating prices. Therefore, the dissentient opinion should be more preferable in that it pays a special regard to the requisite in considering the test of minimum infringement.