정당보상에 있어 개발이익배제논리의 위헌성에 관한 고찰 = A Study on the Unconstitutionality of an Affirming Hypothesis that Windfall Should be Excluded from the Compensation for the Land Taken

다국어 초록 (Multilingual Abstract)

Article 23(1) of the Constitution provides and guarantees the right of private property of all citizens,
Article 23(3) goes on to provide that condemnation of property rights for public necessity shall be governed
by law and in such a case just compensation therefor shall be paid, which the permanent guarantee of
property rights shall be converted into just compensation(value guarantee) therefor.
Constitutional Court differentiates social obligation inherent in property rights provided by Article 23(1)
and Article 23(2) from deprivation of property by Article 23(3).
Although a project initiator may have the legal ability to acquire the right of eminent domain for public
project, he or she can neither acquire nor develop land needed under a substantial land use regulation in the
zoning(management zone, green zone, etc) derived from social obligation inherent in property rights. He or
she can acquire and develop it, when changed into a developable zone which resulted from removing the
limitation or prohibition on it.
A change of the zoning may increase the value of land due to the diversity of land use resulting from
removing the limitation or prohibition on social obligation inherent in property rights. The enhancement in
the value of land, which resulted from removing the limitation or prohibition on it is a general benefit, that
should be enjoyed by all the landowners who possess developable lands.
Although Constitutional Court strictly differentiates social obligation inherent in property rights by Article
23(1) and Article 23(2) from deprivation of property rights by Article 23(3), he decided that just
compensation be the amount based on officially assessed land price designed under a substantial land use
regulation in the zoning, derived from social obligation inherent in property rights, which might violate the
upper precedents, and makes arbitrary discrimination against the sellers(the expropriated owners).
Unless the compensation for deprivation of property rights will be just, the seller might not agree on the
amount of compensation to be paid for the land needed, which derived the freedom of contract and the
principle of private autonomy.
The compensation offered to the expropriated owner should be the amount based on current value(fair
market value), should be sufficient enough to acquire alternative land nearby which is equivalent for the
land taken, and should be the amount that by a willing and informed seller and a willing and informed buyer
might be expected to reach an amicable agreement for it in the open market. Therefore an affirming
hypothesis that windfall should be excluded from just compensation that shall be paid to the landowner for
the land taken can not be materialized.

참고문헌 (Reference)

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