Since 1970s, industralization has been accelerated in Korea and state and local government has extended acquisition of public sites. But lack of legal and institutional principles and systems of loss compensation from the acquisition, private property...
Since 1970s, industralization has been accelerated in Korea and state and local government has extended acquisition of public sites. But lack of legal and institutional principles and systems of loss compensation from the acquisition, private property rights has been encroached frequently.
Article 23 of the Constitution prescribes property rights guaranteed in the Constitution as well as restriction and compensation. Especially Section 2 of Article 23 emphasizes that expropriation, use or restriction of private property from public necessity and compensation therefore shall be governed by law and just compensation shall be paid.
From January 1, 2003, new system of compensation came into effect resulted from enacting "The Act on Acquisition of Land, Etc for Public Works and the Compensation Therefor(hereafter called Land Compensation Act)". This law is designated to unify existing two acts such as "Land Expropriation Act" and "Act on Special Cases concerning the Acquisition of Lands for Public Use and the Compensation for Their Loss". The main purpose of the act is to ensure a promotion of public welfare and a pertinent protection of property rights through an efficient implementation of the public works, by prescribing the matters for indemnity of any loss incurred by the acquisition or use of the land, etc. required for the public works through consultations or expropriation.
As a result, compensation process period is shortened and project for public welfare can be promoted without a hitch. In addition, new integrated compensation system stipulations common procedure for compensation clearly, establishes expert institution for appreciation and suggests developing compensation standards.
The purpose of this study is to research compensation standards realizing 'just compensation' in the Constitution or 'perfect compensation' in the case law, to analyze other compensation-related laws, various foreign compensation system and laws and legal theory of compensation system in the view of the Constitution, and to review main contents of ""The Act on Acquisition of Land, Etc for Public Works and the Compensation Therefor." After analyzing and discussion, I suggest several improvement methods to enhance contemporary compensation system as follows.
First of all, Judiciary have interpreted legal nature of "the consultation acquisition" and "project approval", which is main issue of acquisition and compensation therefore, as "the contracts with private company" and "the administrative measures" respectively in its rulings. Practically, when people consult acquisition with enterprise, they anticipate subsequent procedure in expropriation which is in public law. So it is not differentiated from compulsory acquisition of public land. The project approval is principle stage of compulsory purchase procedures which might infringe on the personal property rights for public use. Therefore lawful procedures need to be made to comply with principles of "Vorbehalt des Gesetzes."
Second, as to 'mutatis mutandis project approval by related laws, I strongly argue its provision in respective laws be abolished for ensuring rights for property. Because its nature of obtaining administrative convenience, individual rights would be restricted or neglected resulted from project recognition deemed by related laws. In addition, it would be unfair to put separate period of application for adjudication in individual laws. I suggest that the clause on the period of application shall be unified into the "Land Compensation Law" while individual application period is eliminated.
Finally, so-called 'compensation for living rights' is mainly based on enforcement decrees and regulations rather than law, which means it is regarded as indirect compensation rather than direct compensation. In practice, the life compensation is well performed through compensation of mining concession, fishing right, business losses, farm losses, wage losses and moving plan. However definite computation of the indemnity amount and conditions are supposed to be prescribed by the Presidential Decree or the Ordinance of the Ministry of Construction and Transportation. Therefore I suggest that the 'Land Compensation Law' shall clearly specify standards for life compensation in order to reduce unreasonable individual losses and harmonize public and private interests within the public welfare perspective.