토지비축사업에 관한 헌법적 검토 = A Constitutionl Examination on Land Bank Undertaking

다국어 초록 (Multilingual Abstract)

Article 23 of the Constitution which states individuals` ownership rights as a basic right states further on clause 2 that the right should be exercised in accordance with public interest. The same article clause 3 states land expropriation in necessary cases. Article 122 of the Constitution provides that the state can impose restriction and duty if necessary according to the law in order to guarantee the efficient, balanced development and maintenance of land.
Land, an object of ownership rights, has been emphasized regarding the public importance of its usage as a limited good. The public importance of land ownership has been emphasized constantly since the 1948 Amendment. However, the inconsistency of government policy resulted in speculation, which acted as a main cause of the soaring prices of real estates, having a profound impact on national economy and the housing life of people.
In 1989, the government introduced the public concept of land ownership in order to regulate real estates speculation and to guarantee the efficient, balanced development and maintenance of land. The public concept of land ownership purports to guarantee the public characteristics of land ownership by emphasizing that land should be efficiently used for public welfare and interest and the state can impose adequate restrictions for it.
The public concept of land ownership is a constitutionally important factor considering the reality of our country suffering from the deficiency of available lands. However, an adequate perception of the public concept of land ownership is not yet established in our society. Due to the lack of this perception, it is not easy to promote public projects for public interest. Especially, in the case of public development to expand SOC(Social Overhead Capital), the soaring prices of real estates around expected lands to be developed are not easy to reach with the government's budget. The burden of land expropriation eventually goes to the people. Land bank system was introduced in this context.
Land bank system aims to realize public interest with a small cost by expropriating lands in advance preparing for the expected public projects. However, despite the institution's efficiency and future-oriented aim, land expropriation without any concrete plan can violate the ownership right of individuals. Restriction of the ownership rights by mere provisional plans can cause unconstitutionality by violating the basic right of individual. Therefore, in the aspect of both national and individual interest, the institution must be based on constitutional legitimacy.
Since 2007, a number of local authorities has prepared to introduce the ‘land bank system’ which reserves land for local public development and directly provides it to investors. It has been considered not to upset the projects by excessive financial burdens caused by price ascension of real estates.
With the introduction of ‘land bank institution’, the state and the local authority can alleviate financial burden and thus seek efficiency in promoting the development projects to expand SOCs. If real estate speculation is prevalent like in our country, the unexpected soaring price of real estate is determined to be a setback of governmental public projects, which will eventually act against public and individual interest. Therefore, if land bank undertaking is conducted by a special law enacted upon constitutional basis, unconstitutionality does not seem to be the problem.

다국어 초록 (Multilingual Abstract)

Article 23 of the Constitution which states individuals` ownership rights as a basic right states further on clause 2 that the right should be exercised in accordance with public interest. The same article clause 3 states land expropriation in necessary cases. Article 122 of the Constitution provides that the state can impose restriction and duty if necessary according to the law in order to guarantee the efficient, balanced development and maintenance of land.
Land, an object of ownership rights, has been emphasized regarding the public importance of its usage as a limited good. The public importance of land ownership has been emphasized constantly since the 1948 Amendment. However, the inconsistency of government policy resulted in speculation, which acted as a main cause of the soaring prices of real estates, having a profound impact on national economy and the housing life of people.
In 1989, the government introduced the public concept of land ownership in order to regulate real estates speculation and to guarantee the efficient, balanced development and maintenance of land. The public concept of land ownership purports to guarantee the public characteristics of land ownership by emphasizing that land should be efficiently used for public welfare and interest and the state can impose adequate restrictions for it.
The public concept of land ownership is a constitutionally important factor considering the reality of our country suffering from the deficiency of available lands. However, an adequate perception of the public concept of land ownership is not yet established in our society. Due to the lack of this perception, it is not easy to promote public projects for public interest. Especially, in the case of public development to expand SOC(Social Overhead Capital), the soaring prices of real estates around expected lands to be developed are not easy to reach with the government's budget. The burden of land expropriation eventually goes to the people. Land bank system was introduced in this context.
Land bank system aims to realize public interest with a small cost by expropriating lands in advance preparing for the expected public projects. However, despite the institution's efficiency and future-oriented aim, land expropriation without any concrete plan can violate the ownership right of individuals. Restriction of the ownership rights by mere provisional plans can cause unconstitutionality by violating the basic right of individual. Therefore, in the aspect of both national and individual interest, the institution must be based on constitutional legitimacy.
Since 2007, a number of local authorities has prepared to introduce the ‘land bank system’ which reserves land for local public development and directly provides it to investors. It has been considered not to upset the projects by excessive financial burdens caused by price ascension of real estates.
With the introduction of ‘land bank institution’, the state and the local authority can alleviate financial burden and thus seek efficiency in promoting the development projects to expand SOCs. If real estate speculation is prevalent like in our country, the unexpected soaring price of real estate is determined to be a setback of governmental public projects, which will eventually act against public and individual interest. Therefore, if land bank undertaking is conducted by a special law enacted upon constitutional basis, unconstitutionality does not seem to be the problem.

참고문헌 (Reference)

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13 김남철, "기업도시에서의 사인을 위한 토지수용의 법적 문제" 한국토지공법학회 24 : 573-596, 2004

14 김연태, "공용수용의 요건으로서의 ‘공공필요’" 법학연구원 48 (48): 83-105, 2007