개발과 인권의 조화 관점에서 본 토지법제 -캄보디아의 토지법제를 중심으로- = Land Law as a Harmonization between Development and Human Rights -Focusing on Land Law of Cambodia-

다국어 초록 (Multilingual Abstract)

This paper is to study land law of Cambodia from the perspective of harmonization between development and human rights. There are two main land related legislations in Cambodia: Land Law (Preah Reach Kram/NS/RKM/0801/14 2001) and Law on Land Management Urban Planning and Constructions (Preah Reach Kram/04NS94/10Aug94 Enacted on May 24 1994). According to these laws private ownership rights of land are secured and these rights are not removed without public interest and just compensation. These aspects reflect the transition from socialist state to market economy. However some limitations can be found: i) legal protection of non-registered land is deficient; ii) land law dispute resolution system is not well structured; iii) there is a gap between ideal and reality of ``sustainable development``; and iv) there is a disagreement among various laws. When we view the land law of Cambodia from the perspective of harmonization between development and human rights we can get following lessons: i) property right of land including land registration system is important to eradicate the land grab; ii) ``public interest`` as a condition for land expropriation should be more clearly defined; iii) just compensation should be given to evicted people. This should be provided not only in constitution but also in other legislation and sub-decrees; and iv) land law dispute resolution system should be well designed. The role-sharing between courts and other dispute resolution institutions is crucial. Land law of Cambodia lends some lessons to international development of Korea: i) we should arrange the developmental experience of Korean land expropriation law; ii) we should collect the developmental experience of Korean land law dispute system; and iii) enterprises which are involved in international development project should pay attention to respect human rights of host countries` indigenous people.

참고문헌 (Reference)

1 김상용, "토지소유권법사상" 민음사 1995

2 권오승, "체제전환국 법제정비지원" 서울대학교 출판부 2006

3 Andreassen, Bard A., "인권을 생각하는 개발지침서" 후마니타스 2010

4 심동섭, "세계화와법의 교류 -체제전환국 법제개혁지원과 '법의 지배'강화 정책을 통한 한국법의 세계화" 도서출판 해든 2006

5 김대인, "베트남의 법제협력" 한국법제연구원 (9) : 2008

6 김대인, "베트남을 중심으로 본 '법과 개발'의 현황과 과제" 한국법제연구원 (8) : 2007

7 김대인, "국제개발협력의 관점에서 본 법치주의의 개념" 동북아법연구소 4 (4): 255-278, 2010

8 Weiner, Andy, "The Forest and the Trees: Sustainable Development and Human Rights in the Context of Cambodia" 1543 : 2003

9 Chapman, William, "The Best Laid Schemes: Land-Use Planning and Historic Preservation in Cambodia" 529 : 1998

10 Candelaria, Maria Aurora Fe, "The Angkor Sites of Cambodia: The Conflicting Values of Sustainable Tourism and State Sovereignty" 253 : 2005

11 Ahn, Soo-Jeong, "Regional and Comparative Law-Asia/Pacific" 1007 : 2009

12 Hel, Chamroeun, "Land Law and Economic Development in Cambodia" Center for Asian Law (Korea) & Royal University of Law and Economics (Cambodia) 2009

13 Bruce, John W., "Land Law Reform" The World Bank 2006

14 Teilee, Kuong, "Development of Property Law in Cambodia, Vietnam and China: What is Behind the Legal Reforms in Transition to a Market Economy?" 2010

15 Kato, Toshiyasu, "Cambodia: Enhancing Governance for Sustainable Development" Asian Development Bank 2000