Constitutionality Review

Contested Provision

The contested provision stipulates that the responsibility for the earthquake resistance of a building issued with a registration certificate rests with the owner.

Ground for the Request for Annulment

It was maintained in brief that the State had a positive obligation to create a healthy and balanced environment, and there was no legal regulation prescribing inspections as to whether a building issued with a registration certificate met certain standards ensuring the safety of life and property. It was further argued that despite the lack of such a regulation, the contested provision placed the responsibility for the earthquake resistance of the building on the owner, which was incompatible with the State’s positive obligations. The contested provision was therefore claimed to be unconstitutional.

The Court’s Assessment

Given that a building registration certificate is issued by the incumbent administration upon declaration by the owner without any inspection, it is not determined, in practice, whether any building issued with a registration certificate complies with the applicable legislation regarding construction. In other words, the buildings that do not comply with the relevant legislation may also be issued with a registration certificate. Even though the incumbent administration may not have inspected whether the building is earthquake resistant while issuing the certificate, the responsibility of inspection, as a positive obligation imposed on the State, arising from the duty to protect the right to life, cannot be said to be set aside completely. Thus, the administration’s obligation in this sense also remains to be in place even after the building registration certificate has been issued. Article 40 of the Constitution, in conjunction with Article 17 thereof, entails that the potential damages to life and physical integrity arising from the violation of the aforementioned obligation should be redressed.

It is stipulated in the contested provision that the responsibility for the earthquake resistance of buildings constructed in breach of the applicable legislation lies with the property owner, and the State will not be held liable for damages arising from the failure to perform the required inspection. Pursuant to this provision, in the event of any damage to life or physical integrity caused by a potential earthquake in buildings issued with registration certificate, the administration will not be held liable. Hence, a full remedy action to be brought by the parties against the administration, seeking compensation for the damages incurred, would have no prospect of success.

Exempting the administration from liabilities arising from the failure to inspect whether buildings issued with a registration certificate pose a risk to human life or are earthquake-resistant amounts to relieving the administration, by law, of its constitutional obligations. However, it is not legally permissible to eliminate the administration’s constitutional obligations and the associated pecuniary responsibilities through statutory provisions.

The Court has concluded that the contested provision assigns the responsibility for ensuring the earthquake resistance of a building, which might be constructed in violation of the applicable legislation, to its owner. Thus, shielding the administration from compensation claims in a matter where its supervision and inspection are obligatory is incompatible with the requirements of the right to an effective remedy safeguarded by Article 40 of the Constitution. As a result, the aforementioned provision is in breach of the right to an effective remedy, in conjunction with the right to life safeguarded by Article 17 of the Constitution.

Consequently, the contested provision has been found unconstitutional and therefore annulled.