「체육시설의 설치·이용에 관한 법률」 제27조 제2항의 위헌성 연구- 재산권 침해 및 평등원칙 위반을 중심으로 -

Abstract

This study examined the unconstitutionality of Article 27 (2) of the Act on the Installation and Use of Sports Facilities (“Sports Facilities Act”). The members of the sports facilities have the right to use the sports facilities and claim for refund of the deposit. Article 27 (2) of the Sports Facilities Act provides that any person who acquires essential sports facilities according to the auction pursuant to the Civil Execution Act, conversion pursuant to the Debtor Rehabilitation and Bankruptcy Act, sale of seized property pursuant to the National Tax Collection Act, the Customs Act, or the Local Tax Collection Act, and other procedures corresponding to subparagraphs 1 through 3(“successful bidder”) shall succeed the obligations of the sports facilities business entity to the members. Accordingly, the members of the sports facilities enjoy both the use value and exchange value of such facilities owned by the successful bidders. While members enjoy this strong position, the rights of the creditors to sports facilities business entities are severely limited. As in Article 27, Paragraph 2 of the Sports Facilities Act, there is no basis for justifying the restriction of the rights of the creditors. Article 27 of the Sports Facilities Act is not a provision for public welfare, but just a provision for the protection of the private interests of members. Article 27 (2) of the Sports Facilities Act violates the essential aspect of security real rights of the creditors or the beneficiary rights of the collateral trusts. Article 27 (2) of the Sports Facilities Act excessively restricts the right of property. Article 27 (2) of the Sports Facilities Act, by prioritizing the interests of the socio-economic benefit class over those of the socio-economic underprivileged, is contrary to the justice and equality principle. Article 27 (2) of the Sports Facilities Act shall be urgently repealed or reformed.