사인에 대한 공용수용권 특허의 위헌성 검토 - 미국의 사례를 중심으로 - = A Study on Delegation the Power of Eminent Domain Authority to Private Entities

다국어 초록 (Multilingual Abstract)

Traditionally, in American legal system, the Federal and all the States' Constitutions approve public entities' power of eminent domain for public use and with just compensation. However, recently, the statutes which the Federal and States' governments delegate the power of eminent domain authority to private entities are increasing more and more, especially in the sector of urban redevelopment.
By the way, whether is a sort of statute like this against constitution or not? For resolving this problem, we have to recognize what means “public use”. Generalizing broadly, there have been three different judicial definitions of public use, although they do not coincide precisely with particular historical periods.
The first, which has always been regarded as an uncontroversial minimal definition, is that public use means public ownership. Under this basic definition, a taking is for public use if the government will own and control the property after the condemnation is complete. A second, more inclusive, definition provides that public use literally means use-by-the-public. Under this definition, title to the property after condemnation is not relevant. The third and by far the dominant definition is that public use means public purpose or benefit. Under this expansive conception, property can be taken for any purpose with a plausible public interest justification.
In conclusion, the question about whether the statute provided delegation the power of eminent domain to private entities is against constitution defends on whether the purpose of takings comes under “public use” or not. Therefore, even though the statute provides delegation power of eminent domain to private entities, it is constitutional unless it's purpose does not fall under “public use

참고문헌 (Reference)

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