토지보상법상 공익사업시행지구 밖 간접손실보상에 관한 연구

다국어 초록 (Multilingual Abstract)

The type and scale of public works projects have expanded in recent days, and the technologies for the design and construction related to such projects have become increasingly sophisticated. As a result, unintended or unexpected outcomes of public works projects are wreaking havoc on the general public, which has increased the necessity and significance of compensation for indirect losses. However, because the current “Land Compensation Act” presumes extremely limited compensation with regard to compensation for indirect losses, compensations tend not to be made appropriately. As the existing system fails to adequately reflect the reality, significant costs are being incurred by the nation and the entire society due to various conflicts such as civil complaints raised in connection with compensation and reparation. Therefore, it is important to provide tangible relief to the victims who have suffered damages in connection with disputes arising out of the issue of compensation for indirect losses, and also to ensure that public works projects are seamlessly implemented. To this end, an efficient and equitable compensation system needs to be established by clearly defining the fundamental standards for and approaches to compensation for indirect losses.
One of the problems is that theoretical studies into the concept, legal grounds, and characteristics of compensation for indirect losses have not sufficiently been conducted. In previous discussions on compensation for indirect losses, compensation was implemented selectively in the absence of a clear definition of the above-mentioned factors, which inevitably led to confusion with regard to the systemicity of such discussions such as the scope or limitation thereof. In this respect, this study has aimed to define the systematic position of compensation for indirect losses by taking the concept and the features thereof into consideration. Moreover, in order to resolve fundamental problems, this study has also proposed directions for improvement with regard to the legislation and policies related to the target and scope of compensation for indirect losses, in addition to defining the concept thereof.
Meanwhile, under the dualistic framework of “ compensation for losses ” and “indemnification for damages,” compensation for indirect losses, which is ambivalent, can be interpreted differently depending on whether it is considered as compensation for losses or indemnification for damages. However, as there exists no consentient judgement thereon in cases where there are deficiencies in compensation regulations, resolutions are being made on an ad hoc basis. In this regard, this study has sought to review the legal principles as to which one of “compensation for losses” and “indemnification for damages” is more effective for practically providing relief to victims in the absence of relevant legal provisions, and also to deduce an agreeable standard by readjusting the scope of application of compensation for losses and indemnification for damages depending on specific circumstances.
Additionally, by shedding new light on compensation for the losses that are not presumed by the Land Compensation Act, such as “losses of livelihood or damages of non-property legal profits as a result of indirect infringement,” from the viewpoint of supportive measures such as assistance program for residents, and by attempting to include the legal system for supporting surrounding areas as one of the factors that constitute the legal system for compensation for indirect losses, this study has attempted to resolve problems related to compensation for indirect losses in a more practical manner within the current legal system. Through such attempts, it is expected that compensation for property rights and livelihood, as well as compensation for non-property rights, will co-exist under a mutually complementary relationship within the framework of compensation for indirect losses rather than under a conflicting relationship, which will likely contribute to the prevention and resolution of conflicts among interested parties.

국문 초록 (Abstract)

최근 공익사업의 종류와 규모가 확대되고 그 설계와 시공기술이 고도화됨에 따라 공익사업의 추진에 있어 기존에 의도되지 않거나 예상할 수 없었던 부수적 결과를 통한 국민의 피해가 증가하고 있다. 그에 따라 간접손실보상의 필요성과 그 중요성 또한 점점 커져가고 있다. 그러나 현행 토지보상법은 간접손실보상과 관련하여 아주 제한적인 보상만을 예정하고 있어 적절한 보상이 이루어지지 않는 문제가 있다. 제도가 현실을 반영하고 있지 못함에 따라 보배상과 관련된 각종 민원 등의 분쟁으로 국가와 사회 전체가 막대한 비용을 지불하고 있는 실정이기도 하다. 따라서 간접손실을 둘러싼 분쟁에 대하여 피해를 입은 자를 명확하게 구제함과 동시에 공익사업의 시행이 원활하게 추진될 수 있도록 하는 것이 중요하다. 이를 위해서는 간접손실보상을 위한 기본적인 기준과 그 접근방식을 명확히 밝힘으로써 효율적이고 공정한 보상시스템을 구축하는 것이 필요하다.
문제는 간접손실보상의 개념, 법적 근거, 성격 등 이론적 연구가 부족한 상황이다. 종래 간접손실보상에 관한 논의는 이 점을 명확히 하지 않은 채 필요에 따라 선별적으로 보상이 진행된 결과 그 범위나 한계 등 논의의 체계성에 있어 일정 부분 혼란을 피하기 어려웠다. 따라서 본고에서는 먼저 간접손실의 개념, 그 전보의 성격에 유념하면서 간접손실보상의 체계적 위치를 조명하고자 하였다. 또한 근본적인 문제해결을 위하여 간접손실보상의 개념정의를 비롯하여 그 대상, 범위 등에 관한 입법·정책적 개선방향을 제시하였다.
또한 손실보상과 손해배상의 이원적 체계하에서는 양면적 성격을 갖는 간접손실에 대한 전보를 손실보상과 손해배상 중 어느 것으로 보느냐에 따라 그 이해가 달라질 수 있다. 그런데 보상규정 흠결 시 이에 대한 일치된 판단이 부재하여 임시방편적 해결이 이루어지고 있는 문제가 있다. 따라서 법령의 공백 상황에서 손실보상과 손해배상 양자 중 무엇이 피해자의 실질적인 권리구제 면에서 효과적일 수 있는지 대해 법리적으로 검토하고, 구체적인 상황에 따라 양자의 적용범위를 재조정하여 합의가능한 기준을 도출하고자 하였다.
그리고 토지보상법이 예정하고 있지 않은 손실 예컨대, ‘간접침해로 인한 생활이익의 상실이나 비재산적 법익의 침해’에 대한 보상을 주민지원사업 등의 지원조치 관점에서 재조명하고 주변지역지원법제를 간접손실보상법제의 한 요소로 포함시켜 재정립을 시도함으로써, 우리 현 법제 내에서 간접손실보상에 대한 보다 실제적인 문제해결을 도모코자 하였다. 이를 통해 재산권보상과 생활보상 나아가 비재산권보상이 서로 충돌적 관계가 아니라 간접손실보상 내에서 상보적 관계로 공존하게 되며, 결과적으로 이해관계인 간의 분쟁예방과 해결에 기여할 것으로 기대된다.

목차 (Table of Contents)

• 국 문 요 약 ··········································································· ⅸ
• 제1장 서 론 ············································································ 1
• 제1절 연구의 배경 및 필요성 ·······································································1
• 제2절 연구의 방법 ······················································································3
• 제3절 연구의 구성 및 체계 ··········································································3
• 제2장 간접손실보상 일반론 ························································ 5
• 제1절 정당보상 구현을 위한 손실보상 영역의 확대 ··········································5
• Ⅰ. 손실보상의 개관 ·················································································5
• Ⅱ. 헌법상 정당보상과 개발이익배제 원칙 ····················································8
• Ⅲ. 손실보상 환경의 변화와 간접손실보상 ····················································9
• 제2절 간접손실보상의 의의와 체계적 위치 ···················································· 10
• Ⅰ. 간접손실보상의 의의 및 근거 ····························································· 10
• 1. 간접손실보상 개념에 관한 선행연구 검토 ············································ 10
• 2. 개념의 정립 ··················································································· 14
• 1) 개념 정립의 필요성 및 공통 개념요소 ············································· 14
• 2) 개념요소의 구체적 분석 ································································ 15
• 3) 간접손실보상 개념 정립 ································································ 24
• 3. 간접손실보상의 법적 근거 ································································ 25
• 1) 헌법적 근거 ················································································ 25
• 2) 법률적 근거 ················································································ 26
• Ⅱ. 간접손실보상의 성격 및 체계적 위치 ··················································· 30
• 1. 서································································································· 30
• 2. 간접손실보상의 성격········································································ 30
• 1) 부대적손실보상 성격 ···································································· 30
• 2) 생활보상적 성격 ·········································································· 36
• 3) 간접손실보상의 정당보상성 ··························································· 41
• 3. 간접손실보상의 체계적 위치 ····························································· 45
• 1) 간접손실보상과 부대적손실보상의 관계 설정 ···································· 45
• 2) 간접손실보상과 생활보상의 관계 설정 ············································· 46
• 3) 간접손실보상과 잔여지보상의 관계 설정 ·········································· 47
• 제3절 간접손실보상의 요건 ········································································ 61
• Ⅰ. 간접손실보상의 일반요건 -행정상 손실보상 요건의 간접손실보상 차원에서의
• 검토 ····································································································· 61
• Ⅱ. 간접손실보상의 특별요건 ··································································· 77
• 제3장 간접손실보상 사례 분석 및 문제점 도출 ···························· 79
• 제1절 토지수용위원회 사례 ········································································ 79
• Ⅰ. 토지수용위원회 재결례의 변화 ···························································· 79
• Ⅱ. 간접손실보상 관련 사례 조사 ····························································· 83
• Ⅲ. 토지수용위원회 사례 검토 ·································································· 84
• 제2절 환경분쟁조정위원회 사례 ·································································· 85
• Ⅰ. 사례분석 개관 ·················································································· 85
• Ⅱ. 구체적 사례 검토 ·············································································· 88
• 1. 보령해저터널사업 수질오염으로 인한 수산물 피해 사례 ························ 88
• 2. 광주외곽순환도로사업 소음∙진동∙먼지로 인한 가축 및 물질 피해 사례 ····· 91
• 3. 가재울 뉴타운 재개발사업 소음∙진동∙먼지로 인한 영업손실 및 정신적 피해
• 사례 ·································································································· 94
• 4. 진접선 연장사업 지하수수위저하로 인한 농작물 피해 사례 ···················· 98
• 5. 이천 ~ 문경 간 철도건설사업 진동으로 인한 건축물 피해 사례 ··········· 102
• 6. 밀양 ~ 울산 간 고속도로건설사업 일조침해로 인한 과수 피해 사례······ 105
• 제3절 국민권익위원회 사례 ······································································ 110
• Ⅰ. 사례분석 개관 ················································································ 110
• Ⅱ. 구체적 사례 검토 ············································································ 110
• 1. 부산에코델타시티 친수구역조성사업으로 인한 어업피해 사례 ··············· 110
• 2. 마산 ~ 함안 간 전철복선화사업으로 인한 인근 마을 지하수 고갈 사례 · 111
• 3. 춘천 ~ 안양 간 고속도로건설사업으로 인한 영업피해 사례 ················· 113
• 4. 음암 ~ 성연 간 국도대체우회도로사업 소음∙진동 등으로 인한 인근 주민 피
• 해 ··································································································· 114
• 5. 보성 ~ 임성리 간 철도건설사업으로 인한 가축 피해 ·························· 117
• 6. 부산∙진해경제자유구역 명지지구 개발사업 일부편입 주거용 건축물 보수에
• 따른 임시주거비 지급 사례 ································································· 118
• 7. 기타 사례 ···················································································· 120
• 제4절 문제점 및 시사점 도출 ··································································· 122
• Ⅰ. 위원회별 사례 종합 검토 ································································· 122
• Ⅱ. 시사점 도출 및 문제점 정리 ····························································· 124
• Ⅲ. 문제 해결을 위한 방법론 ································································· 126
• 제4장 간접손실보상 개선방안 Ⅰ (해석론적 접근)······················· 128
• 제1절 보상규정이 흠결된 간접손실에 대한 권리구제····································· 128
• Ⅰ. 보상규정의 존재가 손실보상의 필수적 요건인지 여부 ··························· 128
• 제2절 외국의 법제 검토 ··········································································· 129
• Ⅰ. 독일 ····························································································· 129
• Ⅱ. 프랑스 ·························································································· 141
• Ⅲ. 일본 ····························································································· 153
• Ⅳ. 영국 ····························································································· 161
• Ⅴ. 외국의 법제로 본 시사점 ································································· 178
• 제3절 해석론적 해결 방안 ········································································ 181
• Ⅰ. 서 ································································································ 181
• Ⅱ. 손실보상을 통한 해결 가능성 ··························································· 182
• 1. 수용유사적침해이론 ······································································· 183
• 2. 수용적침해이론 ············································································· 187
• 3. 분리이론 ······················································································ 190
• Ⅲ. 손해배상을 통한 해결 가능성 ··························································· 195
• 1. 민법 제750조에 따른 손해배상 가능성 ············································· 195
• 2. 국가배상책임 성립 가능성- 국가배상법 제2조의 적용 가능성 ·············· 198
• 3. 국가배상법 제5조 영조물 책임을 통한 해결 가능성 ···························· 201
• 4. 환경정책기본법 등을 통한 해결 가능성············································· 207
• 5. 환경오염피해 배상책임 및 구제에 관한 법률 ····································· 209
• 6. 소결: 환경정의 관점에서 본 환경정책기본법상 손해배상 그리고 손실보상과
• 의 유사성 ························································································ 211
• Ⅳ. 손실보상과 손해배상의 상대화 ·························································· 212
• 1. 상대화 경향의 배경 ······································································· 212
• 2. 일원론적 접근 ·············································································· 214
• 1) 독일의 일원화 논의와 국가책임론 ················································· 214
• 2) 수인한도의 2단계적 구성 ···························································· 215
• 3) 위험책임론················································································ 216
• 3. 상대화 경향을 인식한 판례 ····························································· 219
• 1) 대법원 2001. 2. 9. 선고 99다55434 판결 ······································· 219
• 2) 대법원 2019. 11. 18. 선고 2018두227 판결 ·································· 220
• 4. 상대화 경향에 대한 우리 학계의 논의 ·············································· 221
• 5. 소결 ···························································································· 222
• 제4절 명문의 보상규정이 없는 간접손실의 불복 절차 ··································· 225
• Ⅰ. 토지보상법상 간접손실보상의 불복 절차 ············································· 225
• Ⅱ. 관련 판례 ······················································································ 228
• Ⅲ. 명문의 보상규정이 없는 간접손실에 대한 불복 절차 ····························· 230
• 제5장 간접손실보상 개선방안 Ⅱ (입법론적 접근)······················· 232
• 제1절 입법개선방안 도출을 위한 국내 주변지역지원법제 검토 ······················· 232
• Ⅰ. 송∙변전설비 주변지역의 보상 및 지원에 관한 법률 ······························· 232
• Ⅱ. 발전소 주변지역 지원에 관한 법률 ···················································· 236
• Ⅲ. 댐건설∙관리 및 주변지역 지원 등에 관한 법률 ····································· 239
• Ⅳ. 폐기물처리시설 설치촉진 및 주변지역 지원 등에 관한 법률 ·················· 241
• Ⅴ. 공항소음 방지 및 소음대책지역 지원에 관한 법률································ 246
• Ⅵ. 주변지역 지원법제의 검토 ································································ 250
• 1. 검토의 필요성 ·············································································· 250
• 2. 구체적 검토 ················································································· 251
• 제2절 입법론적 개선방안 ········································································· 256
• Ⅰ. 간접손실보상제도의 재구축 ······························································ 256
• 1. 토지보상법 개정을 통한 해결 방안 ·················································· 256
• 1) 간접손실보상 개념 및 범위 명확화 ··············································· 256
• 2) 간접손실보상의 일반법적·직접적 근거 규정 명확화 ·························· 257
• 3) 물리적∙기술적 손실보상의 법적 근거 마련 ······································ 257
• 4) 간접손실보상청구권의 청구기간 문제 개선 ····································· 257
• 5) 간접손실보상 불복절차 규정 명확화 ·············································· 259
• 2. 토지보상법 시행규칙 개선 방안 ······················································· 260
• 1) 사회적∙경제적 손실보상 규정의 수정 ············································· 260
• 2) 물리적∙기술적 손실보상 규정 신설 ················································ 262
• 3) 구조적 배치 개선 ······································································· 263
• Ⅱ. 간접손실보상제도에 관한 재인식 ······················································· 263
• 1. 차액보상의 인정 및 보상청구의 선택권 부여 ····································· 263
• 2. 각종 지원사업의 간접손실보상법제에의 편입 ····································· 264
• 3. 보상협의회의 활용과 간접손실보상위원회의 설치 ······························· 265
• 4. 관련 기관 간 연계, 통합 관리체계 구축 ············································ 266
• 5. 토지보상법의 입체적 (재)구현 ························································· 267
• 제6장 결론 ········································································· 269
• 참고문헌 ············································································ 272
• ABSTRACT ········································································ 283