道路敷地의 補償基準에 관한 硏究 = (A) Study on Compensation Standard for Road bed

다국어 초록 (Multilingual Abstract)

As 2003. 1. 1 The Act on Special Cases concerning Acquisition of Lands for Public Use and the Compensation for Their Loss was effective, the main purpose of this paper is to look over the compensation standard for each and every road beds according to the new legislation.
Article six, clause two (the compensation standard for road bed) of previous Act on Special Cases concerning Acquisition of Lands for Public Use and the Compensation for Their Loss took the blame for not meeting requirement for fair compensation of constitution. So, the supreme court has different interpretation toward the above act, considering the criticism. It is certain that Act on Special Cases concerning Acquisition of Lands for Public Use and the Compensation for Their Loss originally agrees the supreme court's viewpoint of precedent.
This paper reviews definition of compensation system, the ground of theory and positive law, and general content of compensation system such as the cause of compensation for loss, the compensation standard constitution, and general compensation standard for lands and detailed evaluation on compensation money, in order to understand systematically the compensation standard on road bed of Act on Special Cases Concerning Acquisition of Lands for Public Use and the Compensation for Their Loss. Moreover, it gives detailed materials and analysis on compensation standard of current road bed,. and general definition and kind of road, and history of act regarding compensation standard of road bed.
The article twenty six, clause one of new Act on Special Cases concerning Acquisition of Lands for Public Use and the Compensation for Their Loss says you have to estimates the price of a private road less than 1/5 of that of nearby road, based on private road law. However, in reality, most appraiser value a private road less than 1/3 of that of nearby road. The act regulates for them to have normal appraisal over other roads except a private one. Furthermore, the article six of the act enumerates detail types of private roads
Therefore, the operator dealing with compensation and appraiser working on judgement and evaluation should evaluate and give compensation so long as they're sure the case conforms to article twenty 26, clause two, number one of Act on Special Cases Concerning Acquisition of Lands for Public Use and the Compensation for Their Loss. If the case is not certain to confirm, then all they have to do is to give evaluation in principle.
Less compensation by 1/5 or 1/3, compared with price of nearby road is based on the wha-chae theory that the value of road bed is transferred to the lands protected by private paths. With this basis, the main purpose of this paper is to examine the detail content of private road of private road law and their limits in reality. Moreover, I reviewed closely the compensation standard for public way that has been left alone for a long time, after it was designated to be used the site for road, and also studied the compensation standard for lands which are not entitled to get compensation money because they are the sites which can not be applicable to current law.
Last, I checked the problem of compensation standard of road site regulated by Act on Special Cases concerning Acquisition of Lands for Public Use and the Compensation for Their Loss, then suggested the improvement that must be considered next law-making.
I've been quite embarrassed by the fact that there were not many study materials except simple papers by some operators dealing with concerning jobs. It is regretful that related laws were made and adjusted without nice and clear theoretical basis, positive analysis. I insists that we have to pay close attention this area for better improvement.

목차 (Table of Contents)

• 목차 = ⅲ
• 第1章 序論 = 1
• 第1節 硏究의 背景 및 目的 = 1
• 第2節 硏究의 範圍 및 方法 = 3
• 第2章 損失補償制度 = 4
• 第1節 損失補償의 槪念 = 4
• 1. 適法한 行爲로 인한 損失의 補償 = 4
• 2. 適法한 公權力의 行使로 인한 損失의 補償 = 5
• 3. 特別한 犧牲에 대한 調節的 補償 = 5
• 4. 財産權 侵害에 대한 補償 = 5
• 第2節 損失補償의 根據 = 6
• 1. 理論的 根據 = 6
• 2. 實定法的 根據 = 10
• 第3節 損失補償의 原因 (要件) = 16
• 1. 公共必要에 의한 適法한 財産權侵害 = 16
• 2. 特別한 犧牲 = 17
• 3. 補償規定의 存在 = 18
• 第4節 損失補償의 基準 = 18
• 1. 完全補償說 = 19
• 2. 相當補償說 = 19
• 3. 折衷說 = 20
• 第3章 土地의 補償基準 = 23
• 第1節 客觀的 狀況 基準 = 23
• 第2節 現況評價主義 = 24
• 第3節 裸地想定評價 = 25
• 第4節 開發利益의 排除 = 25
• 1. 開發利益 排除의 方法 = 26
• 2. 開發利益 排除와 正當補償의 關係 = 27
• 第5節 具體的 評價方法 = 29
• 1. 標準地의 選定 = 29
• 2. 時點修正 = 31
• 3. 地域要因 및 個別要因의 比較 = 33
• 4. 其他要因의 補正 = 35
• 第4章 道路敷地의 補償基準 = 37
• 第1節 道路의 槪念 및 分類 = 37
• 1. 道路의 槪念 = 37
• 2. 道路의 分類 = 38
• 第2節 法令의 規定 = 43
• 1. 現行規定 = 43
• 2. 道路補償規定의 變遷 = 44
• 第3節 私道法上의 私道의 補償基準 = 50
• 1. 槪念 = 50
• 2. 私道法上 私道의 補償基準 = 53
• 3. 補償金額을 減額하는 根據 = 54
• 第4節 事實上의 私道의 補償基準 = 55
• 1. 槪念 = 55
• 2. 事實上 私道의 類型 = 56
• 3. 事實上 私道의 補償基準 = 62
• 4. 減額補償의 根據 = 62
• 第5節 公道의 補償基準 = 63
• 1. 未補償 公道 = 63
• 2. 事實上 公道 = 64
• 第6節 其他 道路의 補償基準 = 65
• 1. 自然形成道路 (慣習上 道路) = 65
• 2. 새마을 道路 = 66
• 第5章 問題點과 改善方案 = 68
• 1. 감액 기준 = 68
• 2. 건축법 제35조의 도로 = 69
• 3. 미보상도로의 보상기준 = 70
• 4. 실무상 적용 = 71
• 第6章 結論 = 73
• 參考文獻 = 77
• ABSTRACT = 82