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金地昊 圓光大學校大學院 1980 學位論叢 Vol.4 No.-
Until the mid-nineteenth century, the liberalism that the Government should not interfere in the matter of civil society was the supreme thesis and the order of private law was the main part of civil society's legal relations. But entering the close of nineteenth century, the capitalism has made a remarkable progress and brought about many sociol problems uu-expecteted, which was inconsistent with the result anticipated in the standpoint of the early capitalism. So the Government needed to take positive measures in solving these problems by modifying the autonomous function of inner civil society and had more powerful means to adjust the social interests. With the gradual increase of the public control conducted by the government, there is a great change in the history of human right, Which can be represented by a catchword "from laissez faire to tight control. " It is the appearance of "the right to life" and the weakening of "the right to freedom", especially the right of property. The limitation of private property has come to front by the general change of the ofligation of Government, although the guarantee of private property is the important function of constitution in present time as much as in the early age of liberalism. It is due to the appearance of a new conception public welfare; the basis of limitations of private property is just public welfare. Public welfare as a constitutional value means the interest, happiness and well-being of all in society and it is the common good which is persued for all by each other. It is a primary ideology in the modern wel-fare nations and the most important constitutional criteria that can judge and decide what is more desirable and valuable. Admitting that the right of property ought to be limited for the interest of society, there is two different ways in making a law actually. One is the limitation of property right for the purpose of helping the lower class, the other is the limitation of propeity right for the puspose of preserving or advancing national wealth; the latter means to secure the economic status of the upper class. Of course, these two ways may meet with or independ each other reciprocally. First, if we make a law to adjust the private interests, it may become one for the pursuit of common good. Second, if we make a law for the sake of national wealth, it also may become one for the adjustment of private interests. But, as a matter of fact, these two ways are usually so different that can't be nearly coincident. This difference between two ways, in taking concrete shape of the conception, public welfare, originated in the gap between two viewpoints about the substance of public welfare because one's own estimation of value is indispensable for the interpretation of an idea. Especially, if we consider the present state of private property that people are distinctly devided into both extremes, so called the haves and the have-nots, we can find out that this difference of the cognition of an abstract conception, public wel, fare and the attitude in making a law can make a serious dissension between the haves and the have-nots. Accordingly, public walfare as a constitutional value is not easily made concrete shape to satisfying both of all. In any rate, the general tendency in twentith century is the inclination of social-welfare nation and the special qualities in modern constitution is that the property right and other economic freedoms are weakened by the public control for the realization of the right to life. Never the less, the guarantee of property right is still important as much as the limitation of it because the individual property is the foundation of people's existence in the capitalistic country which is based upon the institution of private property. When we think about such importance of individual property in our capitalistic country, we may well say that the guarantee of property right is the primary question preceding the limitation of it still up to date. Any way, it is well known that the disagreement between the gurantee of property right as fundamental human right and the limitation of it as realization of puflic welfare causes many complicated legal problems; for instance, eminent domain for the land devolpment work and house shortage. This thesis is written for the purpose of solving this legal problems on the guarantee and limitation of property right. The contents of this thesis are as follows.