토지에 대한 공익과 사익의 조정기준과 방법에 관한 고찰

다국어 초록 (Multilingual Abstract)

Land rights have dual-sides of interests, i.e., individual interests and public interests. These interests are often conflict with each other. Because the land system restricts individual property rights to achieve public interests. This paper is to review the dual-sides of land rights and to suggest the future directions of the land laws to mitigate the conflict. Therefore, this paper’s main method is to analyzes decisions in the Constitutional court to set up the criteria for adjustment.
The decisions of Constitutional Court divided into two branches, the superficial adjustment criteria and the substantial adjustment criteria. The latter is more useful than the former to estimate the degree of private interests infringed for the public good. The substantial adjustment criteria can coordinate public and private interests practically. They consist of the principle of moderate restriction(or the principle of proportionality), which is the principle of measures to restrict the basic rights, and the principle of equality, which is the basis of measures to actualize the basic rights.
There are two systems to adjust private interests and public interests on land. One is meant to make a condition, which adjustment itself isn’t demanded any more through abrogating or relaxing regulation on it. The other suggests that the owner of land receives compensation about a loss of it, if regulation on land isn’t inevitable for public interests. Compensation is generally formed as money. But the request right to purchase the land for place of money is being widely used.