개발이익 배제와 정당보상의 법리 = (The) legal principle of betterment exclusion and just compensation

다국어 초록 (Multilingual Abstract)

If public utilities make progress, they generate betterment or loss in relation to land's value. It is not too much to say that largely public utilities generate betterment except for hatred facilities. It is natural that landowners are excluded from betterment. Because this betterment are usually generated regardless of property owners's effort, the society as a whole should enjoy all the advantages as well. Accordingly this betterment is excluded in expropriation of land, but the betterment which is generated around public utilities is not excluded. This brings about serious troubles in compensation for land. Because the discrimination which exclude or not exclude betterment in and around public utilities is unequal. This unequality becomes chiefly civil appeal and improvement of this unequality is demanded to make smoothly progress public utilities.

The current our Constitution, Article 23, Paragraph 3 states that expropriation and use or restriction of property must be paid " just compensation". And Land Compulsory Purchase Act, Article 67 states that betterment is excluded in land compulsory purchase. Both contradict. Although they were the advantages of development, in order to get fair rewards, the reflection on normal price deals should be required. But just compensation is superior to betterment exclusion. Because just compensation is Constitution's demand and betterment exclusion is legislative' demand. So betterment exclusion must be executed under just compensation.

It is natural that betterment is excluded in compensation for land, because betterment is generated regardless of landowner's efforts. But it is not just that betterment which versed persons have formed for a long time is disregard. This market price belongs to right of land owners because that is the problem of just compensation demanding on the constitutional law. And this also is the problem of equality.
Accordingly, Although it is fair to be exclude betterment in land compensation, land compensation is made in the constitutional scope and must be considered equality among people concerned. The aim of this research is to present compensation's problem and also desire to make an alternative plan. Current Land Compulsory Purchase Act states that determining the amount of compensation uses the fixed price system.
But the fixed price system does not involve the fair market value around public utilities. This is not just compensation. At the land compensation, just compensation is demanded, but absolute betterment exclusion like the present must be amended, because long-term formed betterment is not speculative profit. If this aspect is not considered, it is not just compensation. Therefore while short-term formed profit is excluded, long-term formed profit must be involved in the compensation.

Next problem is the equality between people who is made compensation for land and landowners around public utilities. Our court gives judgement which is not runs counter to the spirits of the Constitution. But this, compensating owner is excluded but landowner's around public utilities get betterment, is obviously troubles in public expropriation. Also this troubles runs counter Constitutional equal principle.
What is important is that it must be paid according to the Constitution Article 23, also equals compensating owner and landowner's around public utilities. To solve these problems, This research is concerned with redemption of betterment which generated around public utilities. Therefore It is important to observe the user fee rule. But because it is to impose taxes on unrealized profit, its execution needs to decide carefully.
And another one of raising equality is to stabilize land price around public utilities. There is various measures to be carried out in land stability. For example those are a license system of land transactions or previous purchase rule. And tax reduction and exemption is demanded, because compensating owners are expropriated compulsorily.

As a result, although betterment exclusion is right, it is evitable to reflect a little profit to be just compensation. So land compensation is made in market price. Exclusion of it runs counter Constitution.
And it is eager to raise equality between compensating owners and landowners around public utilities. To be equalized each other, it is demanded to tax reduction and exemption for compensating owner.

In the end, if the above problem would be solved, fair compensation system would be established in relation to the constitution. This research would be a mainstay to realize the constitutional idea in the land compensation.

목차 (Table of Contents)

• 第1章 序論 1
• 第1節 硏究의 目的 1
• 第2節 硏究의 範圍와 方法 4
• 第2章 損失補償制度의 意義 6
• 第1節 損失補償의 法源 6
• Ⅰ. 成文法源 6
• Ⅱ. 不文法源 13
• 第2節 損失補償의 槪念 15
• Ⅰ. 損失補償의 意義 15
• Ⅱ. 損失補償의 根據 15
• Ⅲ. 損失補償의 要件 18
• 第3節 損失補償의 補償基準 및 要件 24
• Ⅰ. 槪說 24
• Ⅱ. 損失補償의 基準 24
• Ⅲ. 損失補償의 原則 26
• 第3章 開發利益 排除에 관한 法理 30
• 第1節 開發利益 排除의 意義와 制度 30
• Ⅰ. 開發利益 槪念 및 排除根據 30
• Ⅱ. 被收用土地에 대한 開發利益 排除 沿革 33
• Ⅲ. 周邊土地의 開發利益 還收를 위한 現行 法制 40
• 第2節 正當補償 觀點에서의 開發利益 排除에 대한 問題點 검토 55
• Ⅰ. 意義 55
• Ⅱ. 憲法上 正當補償의 意味 56
• Ⅲ. 開發利益 排除와 正當補償의 檢討 60
• Ⅳ. 開發利益 排除 方法과 正當補償 78
• Ⅴ. 周邊 土地所有者와의 衡平性 檢討 90
• 第4章 開發利益 排除의 正當性 確保를 위한 代案提示 95
• 第1節 序論 95
• 第2節 土地補償 評價에 있어 正當補償 實現方案 96
• Ⅰ. 意義 96
• Ⅱ. 正常的인 去來價格 反影을 위한 其他事項義 法制化 96
• Ⅲ. 收用裁決 申請期間의 特例 廢地 101
• 第3節 周邊地域 開發利益 還收方案 檢討 103
• Ⅰ. 意義 103
• Ⅱ. 受益者負擔金制 再導入 104
• Ⅲ. 開發利益 還收를 위한 地方稅法 改正 110
• 第4節 開發事業地區 周邊地域 地價安定 圖謀方案 114
• Ⅰ. 意義 114
• Ⅱ. 地價安定을 위한 行政的 制度 116
• 第5章 結論 130
• 참고문헌 134