공익사업을 위한 간접손실보상에 관한 연구 = (A)study on the compensation of indirect loss from public project|RISS 상세보기

다국어 초록 (Multilingual Abstract)

This paper mainly focuses on the proper standard of compensation for the infringement of individual property right. Leading points of the paper regarding justifiable compensation presented in article 23 are as follows:
· The range of justifiable compensation in the constitution.
· The standard of compensation featured in related laws in accordance with the concept of justifiable compensation in the constitution.
· The necessity of reasonable standard of compensation for the infringement of individual property right such as the expropriation of private real estate, which secures both public and private interests in compensation.
To reach this conclusion, the study is progressed with the dogmatic method and the comparison of foreign law. By the dogmatic research search for the scope and limitations of basic rights as constitutional guarantees of property, of right to living and to environment. Dogmatic access to the scope and limitations of compensation would be complemented with the comparision of foreign law. The study proposes some alternatives to amend the Land Compensation Act in Korea.
In modern constitutional states, a property right such as real estate is believed to be an absolute and divine right. However, with a progress into welfare states, a property right is comprehended, rather than an absolute right, as a relative right that can be restricted for public interests. The right of property shall be guaranteed for any citizen by the constitution, just compensation shall be paid in the case of expropriation, use or restriction of private property from public necessity. The legal character of compensation is based on the principle of just compensation in the sacrifice for the social adjustment. Therefore, a constitutional principle is that the contents and limitations of compensation shall be reenacted. Also, expropriation, public use or restriction of private property from public necessity and compensation shall be ruled by a law.
Operation subject of public project shall pay for the direct loss of private property from public necessity. The loss by the public necessity shall cause not only direct material infringement for property but also another loss such as incidental economic loss and reconstruction of life for land owner. For the landowner, who takes residence out of public business district, can be enforced the development loss like a land value devaluation, and environmental damage such as destruction of the living environment, noise, vibration and violation of right to sunshine. The reason for the resistance to public project by the landowner, who takes residence in the public business district, and by the groupe, who lives out of the public business district, can be caused that the compensation is not complete. The contents and limitations of indirect loss can be interested by the academic perspectives on public law.
There are three reasons on the social conflict in the sector of compensation for the implementation of public service.
First, social limitations on the property right are manifested in Article 23 of the constitution in Republic of Korea. The section 1 of article 23 is stating that a property right is reserved in the constitution, which confirms that it belongs to constitutional human rights. Section 3 is declaring that expropriation, public use, or limited use of individual property can be executed for public interests. but, social conflict occurred in the decision-making process for directly required land to the public service and goods between the land owner and operating subject. There is a close connection between the guarantees of property on section 1 of article 23 in the constitutional law and the principle of just compensation on section 3 of article 23.
Second, the damage of land owner by the carrying out the public project leads to the deprivation of land or goods in the public business district but also the deprivation of living conditions such as residence or business as usual in the public business district. Because the landowner has to move out inevitable, he requires moving expense of household goods and a compensatory measure for lockout or suspension of business and a countermeasure against former living conditions. But the limitations of compensation from the public project shall be determined by Act on the principle of just compensation in the constitutional law, the extent of public business operator shall be subject to restriction. This issue is based on the principle of just compensation in the sacrifice for the social adjustment, has close relevance to the subject, just as the scope and limits of compensation in the administrative relief law.
Third, the damage by carrying out the public business occurs not only limited in the public business district but out of the public business district such as the environmental harms like noise, vibration, odor. The compensation law in many countries is restricted within the economic and social compensation for loss of land, goods or property in the public project district. Physical and technical loss out of the public project district can not be solved by the compensation law, but by the theory of claim in private law. This procedure occurs serious problems, the solution by the private law is based on the cause by the public law such as the carrying out public necessity. The compensation for loss are restricted within private law, because the affected person has to prove the illegality and fault of damage occurred carrying out public project. This problem has to be dealed with the theory of compensation on the administrative law, that holds on the interim area between private and public law.
Recently, with an attempt to enlarge the range of compensation and improve the standard of it, it is strongly contended that any damage to living conditions should be compensated for. It will lead to a conclusion that justifiable compensation in the Constitutional law includes 'indirect loss compensation' in its range, which is also reviewed in the paper. The results of this study can be summerized as follows: Loss of private property breakout direct by carrying out public necessary, in addition to compensation for direct loss of land or goods in the public business district, compensation must be paid for additional loss and lose of living conditions even though regulations are not found in the law. And business damage outside of public project district, lose of environmental and developmental benefit shall be payed by the operatin subject of public project. Because compensation for indirect loss has a basis not on the principle of just compensation on the section 1 of article 23 in the constitution, but on the legislation policy and on the responsibility of state by the permission to public project, all loss from landowner must be compensated not as compensation by private law, but as compensation by public law on the principle of the garantees of property.

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국문 초록 (Abstract)

이 연구의 결과는 공익사업을 직접적 원인으로 하는 피해로 인정되는 한, 공익사업에 직접적으로 필요한 공익사업지구 내의 토지나 물건에 대한 손실을 보상하는 것에 그칠 것이 아니라 법률에 손실보상에 관한 규정이 없는 경우에도 부대적 손실과 생활이익의 상실에 대해서도 손실보상을 하여야 하며, 공익사업지구 밖에서 발생하는 사업손실, 환경이익의 상실 및 개발손실에 대한 피해도 공익사업의 시행자가 손실보상을 하여야 한다는 것이다. 왜냐하면, 간접손실보상은 헌법 제23조 제3항의 정당보상의 원리에 의한 보상법률주의의 문제가 아니라 입법정책적 문제이고 공익사업을 직접 시행하거나 허가를 해 준 국가의 책임이므로, 재산권의 존속보장 차원에서 토지 등의 소유자에게 발생하는 모든 피해를 민사상의 손해배상이 아닌 공법상의 손실보상으로 전보하여야 하기 때문이다.
간접손실보상의 법적 성질에 관한 법 해석론의 차이는 손실보상과 손해배상을 이원적으로 파악하는 입장과 일원적으로 파악하는 입장에 따라 다르게 된다. 이원론의 입장에서는 손실보상이 헌법 제23조 제3항을 근거로 하나 손해배상은 헌법 제29조를 근거로 한 것이며, 국가의 책임을 손해배상과 손실보상의 이원화된 제도로 파악한다. 따라서 무과실(위험)책임, 수용유사적 침해, 수용적 침해 등을 기존의 행정상 손해배상이나 손실보상 중 어느 한쪽에 편입시킨다. 그러나 이러한 해석론은 간접손실보상이 적법한 공익사업의 시행으로 발생하는 직접적 피해라는 점에서 직접손실의 보상과 달리 취급할 이유가 없으며, 다만, 손실보상의 범위가 개별적·구체적인 경우에 따라 다른 것이라는 점을 간과한 것으로 보인다. 간접손실보상은 헌법상의 기본권 침해에 대한 보상으로 개별적 헌법 규정을 통하여 보상의 필요성을 인정하고, 입법 정책적으로 해결하는 것이 타당한 접근방법이라고 생각하며, 이러한 측면에서 현행 토지보상법을 개편하는 것이 필요하다.

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이 연구의 결과는 공익사업을 직접적 원인으로 하는 피해로 인정되는 한, 공익사업에 직접적으로 필요한 공익사업지구 내의 토지나 물건에 대한 손실을 보상하는 것에 그칠 것이 아니라 법...

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