토지수용의 법률관계에 관한 연구

다국어 초록 (Multilingual Abstract)

The Korean Land Expropriation Act of 1962(KLEA), succeeded the outline of the Japanese Imperialist Land Expropriation Act of 1900(JILEA), not of 1951(JLEA) as a general statute concerning compulsory land acquisition for public use, was enacted by the Military Regime, that is, is inconsistent with the democratic Constitution of Korea. Several provisions of the amended law of JLEA(1967) in Japan, was misunderstood, was amended as those of KLEA of 1971, and thereof have been distorted. This study is mainly focused on evaluating three topics concerned in public projects, that is, the acquisitions by negotiation, public use requirements and just compensation for the real property acquired in accordance with the democratic Constitution. The chapter reviews the processing of legislations in the individual eminent domain laws in Korea, succeeded the misinterpreted and distorted provisions of three topics of JLEA and JTPZA. The chapter focuses on several problems of unconstitutionality violating the Constitution provided for guarantee of property rights and construing It to be a virtual nullity by compulsory provisions of every condemnation law. The chapter evaluates the failures of providing preventive provisions against the acquisitions by negotiation for owners, the compulsory provisions of every eminent domain law enabling to exercise eminent domain power notwithstanding lack of satisfying the ends “public use” requirements, and the amount of just compensation should be the amount based on officially assessed land price designed under a substantial land use regulation in the zoning, on an affirming hypothesis that windfall should be excluded from, which makes arbitrary discrimination against the owners(the expropriated), unable enough to acquire alternative land nearby which is equivalent for the taken, may result in the denial of the guarantee with the Constitution.
The expropriation of land rights is the action of the state power, which compulsorily makes land rights be acquired or lapsed. It is also called the expropriation of property rights or the expropriation of the land. The land right, generally called the land property right, is not the term established in positive laws or academia, but is the fundamental right for the land separate from the property rights, also stands for land ownership and other all rights related to the land in the publicㆍprivate laws. Though the land law is not enacted yet with a special law, it can be said the fundamental law on land that supplements and practices constitutional idea, by putting the laws related to the land - the constitution, the civil law, the administrative law, etc. together. And in the light of land laws, requirements for expropriation of land rights include public need, legitimate procedures, fair rewards, etc. The current laws confine the scope of public need in the public services, which land rights can be expropriated. But the legal system is not the structure that stipulates the kinds of public services and then expropriates land rights for that business, but is the structure that in case there are regulations that can expropriate land rights, the related businesses become public services. This is putting the cart before the horse. Besides, by regarding authorization of the enforcement plan of the certain business, i.e. administrative procedure as approval of the business, i.e. quasi-judicial procedure, the principle of lawful procedure under the constitution is violated and the right to trial is infringed. Though the Constitutional Court has ruled that these regulations are constitutional, reexamination of the legislation system about expropriation of land rights on the basis of the principle of legal public services, lawful procedure, etc. is required. To justify expropriation of land rights, reasonable compensation must be paid. Resonable compensation theoretically means complete compensation for the objective value of the land, but on the positive law, means to compensate with 'fair prices appraised on the basis of the official land value'. This is being realized by the appraisal system for compensation by means of steady appraisal criteria, methods, procedures, etc. and this structure is being operated, depending on the appraisal system that aims at formation of fair land prices. In case appraised prices based on the official land value are not reasonable compared with normal sale price level of neighborhood at the time of compensation, the appraisal is done by revising them along the sale price level. Because not only do normal sale prices become barometer of economic value, but also the constitution guarantees the right of land value use, i.e. the right to use the fair value of his or her land. The Supreme Court rules that the appraisal can be done in consideration of neighboring normal sale prices, in case the prices appraised on the basis of the official land value are not proper. And the Constitutional Court rules these regulations do not violate the constitution. But even though regulations of the law that have unconstitutional elements are supplemented by the appraisal system and prejudication, and then those are settled, the legislation can't be justified. Consequently, compensation regulations by 'fair prices appraised on the basis of the official land prices' will have to be reformed.
Article 23(1) of the Constitution guarantees private property rights of all citizens, Article 23(3) goes on to provide that condemnation of property rights for public use shall be governed by law and upon payment of just compensation therefor. In such a case it has also been provided that it should not affect the essential substances of such rights and liberties recognized by the Constitution.
The Constitution provides that private property shall be taken for public use and be governed by law, from which the Public Land Aquisition and Compensation Act(PLACA) enacted provides condemnation proceedings, which a project initiator should take the recognition of project whether his or her contemplated project might be for public use or not. The condemnation of private property rights may satisfy the Public Use Requirement of the Constitution when the proportional relationship may be maintained relationally between the condemnor and the land owners in his or her contemplated project. But by virtue of enacted land development laws it is imposed for individuals, companies, or public entities to enable to exercise eminent domain power artificially in a contemplated project, which PLACA forces to consider for public use notwithstanding lack of satisfying it, which the means “condemnation” as compulsory land purchase method(the exercise of eminent domain power) must consider to satisfy the ends “public use” requirement of the Constitution. And those provisions give him or her a naked grant of authority to determine a contemplated project to take lands needed without any scrutiny of the proportional relationship and due process clause for landowners, which denies the guarantee of the Constitution. Although the planning agency exercising its administrative discretion considers it within the scope of planning discretion to determine a land development project to be taken lands needed by the project initiator, it also has the limit exercising it, where it is required of reasons for fairness and equity between the project initiator and landowners. Meanwhile the Supreme Court and the Constitutional Court may arbitrarily evade a judicial review of the agency actions as well as a means-ends test of the legislation imposed by virtue of provisions of which laws governing the physical taking of property is allowed neither notices nor hearings for the landowners, and may be confused within the discretion of court only in land-takings to enable to exercise the means (the power to condemn) to achieve the ends intended, by which method and factors to consider to meet public use generally. The restriction of private property rights could only be imposed by virtue of provisions of the law specifically enacted for public use determined by the Constitution and only to the extent of necessity, and it should not affect the essential substances of private property rights guaranteed by the Constitution, if not, it is inconsistent with the provisions of the Constitution.

목차 (Table of Contents)

• 第1章 서론 1
• 第1節 연구의 배경 및 문제제기 1
• 第2節 연구의 내용 및 방법 6
• 第2章 토지수용 법제의 구조 7
• 第1節 서 7
• 第2節 공익사업을 위한 토지 등의 취득 및 보상에 관한 법률 9
• Ⅰ. 공익사업의 범위 및 공토법의 적용대상 9
• Ⅱ. 공익사업의 준비 10
• Ⅲ. 협의에 의한 취득 12
• Ⅳ. 수용에 의한 취득 13
• Ⅴ. 토지수용위원회 18
• Ⅵ. 손실보상 등 18
• Ⅶ. 이의신청 등 25
• Ⅷ. 환매권 27
• 第3節 공용수용의 근거 및 법리 28
• Ⅰ. 공용수용의 근거 28
• Ⅱ. 공용수용의 법리 28
• Ⅲ. 재산권의 수용을 위한 공공필요와 공익성 통제 30
• 第4節 토지수용의 공법상의 법률관계 41
• Ⅰ. 사업인정제도 41
• Ⅱ. 사업인정의제 제도 43
• Ⅲ. 수용재결과 불복절차 47
• Ⅳ. 보상금청구소송 53
• 第5節 토지수용과 사인의 지위 72
• 第3章 토지수용에 있어서의 사법적 법률관계 76
• 第1節 서 76
• 第2節 토지수용으로 인한 소유권의 변동 76
• Ⅰ. 원칙 77
• Ⅱ. 구분소유적 공유와 공용수용의 문제 80
• III. 잔여지의 수용 88
• 第3節 토지수용과 건물 92
• Ⅰ. 건물과 공용수용 92
• Ⅱ. 관습상의 법정지상권과 공용수용의 문제 110
• 第4節 토지수용과 기타 사법상의 법률관계 119
• Ⅰ. 물상대위와 공용수용의 문제 119
• Ⅱ. 토지수용으로 인한 이전등기청구권의 불능과 대상청구권 133
• Ⅲ. 환매권 142
• 第4章 토지수용법제의 사법적 문제와 개선방안 155
• 第1節 서 155
• 第2節 토지수용의 사법적 문제 156
• I. 서설 156
• II. 토지수용에 관한 사법적 문제 157
• Ⅲ. 토지수용의 사법적 문제에 관한 재판례 분석 174
• 第3節 토지수용법제의 문제점 182
• I. 위헌소지가 있는 규정 183
• II. 체계상 부조화가 있는 규정 187
• 第5章 結論 191