Public roads in the past were constructed in two lanes for both directions, and the lands and buildings near the road could enjoy benefits from the road construction due to improved accessibility or improved road interfaces. As a result, the compensat...
Public roads in the past were constructed in two lanes for both directions, and the lands and buildings near the road could enjoy benefits from the road construction due to improved accessibility or improved road interfaces. As a result, the compensation process for the lands or structures in the project site and the progress of construction were smooth. However, the present public road construction projects often generate losses rather than benefits to the residents near the road because the roads are intended for automobiles only.
Consequently, the construction of public roads is often delayed than expected, and this is causing more losses to the residents in such forms of traffic inconvenience, reduced sales, and noise from the construction work, generating special sacrifice over personal acceptance limit. This situation requires alternative solutions. However, the indirect compensation in the Land Compensation Act only recognizes the loss of remaining land, compensation of construction cost, and request for purchase, which is limited. The indirect compensation defined by the old Act on the Acquisition of Public Land and Compensation for Loss prescribes only the compensation for land outside the public project areas in the Enforcement Regulations for the Land Compensation Act, which only focuses on the compensation for property loss and lacks clear compensation provisions for such losses as noise, vibration, infringement of the right to enjoy sunshine and view.
This study examined the types of civil complaints on indirect compensations from public road construction projects by the National Land Management Administration, and the various theoretical bases for and actual status of indirect compensations that are not prescribed by the present system, and presented the problems and improvements of the present system so as to help implement a reasonable compensation system.
The problems and improvement measures for compensation for indirect infringements are summarized below.
First, the present Land Compensation Act contains no clear concepts on indirect infringements such as noise, vibration, dusts, water exhaustion, and infringements on the right to enjoy sunshine and view outside the project area. Because this lack of clear concept can cause such problems as the lack of equality in compensation and the waste of administration due to contentions, we need to establish the concept of compensation for various infringements from public projects.
Secondly, even though the indirect infringements outside public project areas must be compensated for over the acceptance limit, it is impossible because there are no provisions on compensation for losses from physical and technical aspects. We need to prepare provisions for compensation for direct redemption by victims in the event that the generation of loss is easily predictable and the scope of loss can be concretely specified.
Thirdly, the criteria and limits of compensation for loss are not clear. Because indirect infringements often are difficult to determine the causal relationship, compensation must be limited to those that are clearly predictable. Furthermore, because it is impossible to prepare uniform criteria for compensation, the criteria for proving causal relationships must be prepared through accumulation of cases for the types of infringements that can be standardized. However, in the event that standardization is difficult, the compensation must be individually and specifically determined depending on the case.
Fourth and last, we have the problem of how to calculate the amount of compensation. We may analogically apply the provisions for indirection compensation in the Land Compensation Act, or revise the Japanese criteria for calculation of compensation based on the principle of compensating for the cost required for functional recovery to fit it for our reality. Because indirect infringements are not an object of acceptance or use, it is desirable to charge the cost by functional recovery. More studies and supporting evidences are required for the standardization of indirect infringement types and the preparation of legal provisions for uniform compensation standards for indirect infringements.