As times have changed, the traditional theory of seizure and compensation is not able to meet new situations. Therefore, times have arrived to redefine the meaning of protection of property right in the constitutional law, the suitability of public we...
As times have changed, the traditional theory of seizure and compensation is not able to meet new situations. Therefore, times have arrived to redefine the meaning of protection of property right in the constitutional law, the suitability of public weal or the meaning of seizure and proper compensation differently. The meaning of seizure was interpreted narrowly in the past, but now all the restriction or deprivation of property right against owner's intent must be included in the scope of seizure and it must be properly compensated.
Among the contents of proper compensation, the system of substitutive compensation has been established theoretically and practically and social consensus for the extent of substitutive compensation has been achieved in a degree. However, since the public project, including the urban improvement project today, is carried out in a large area and even changes life basis, the issue of life compensation comes to the fore as an important social issue. Regardless of its terminological definition, the ideology of life compensation has been approved legally. However, the scope of life compensation must be established on the basis of social consensus.
Different from the traditional public projects, such as the construction of a dam which was the start point of life compensation as well as its advancement, the improvement project of downtown has changed the form or content of seizure and compensation. In particular, it presents a great difference from the aspect that the concerned party of the public projects changes from the public sector to a membership-oriented association. Due to the duality of the so-called member's position, the content or characteristic of life compensation, which is represented by migration measures, must be properly interpreted in accordance with the improvement projects.
Another issue of compensation which has been remarkable in the improvement projects is a proper compensation for tenants. As the constituents of a community, tenants have the right of residence and humanly life and from the aspect of protection of property right they are on equal terms with property owners. This is the base on which the public nature of improvement projects is established and the reason to secure the equity between tenants and property owners.
On the other hand, the diversity of tenants functions as an obstacle to establish the base of indiscriminative compensation. In particular, redevelopment projects and reconstruction projects are not much different in its characteristics, but their system of seizure and compensation is quite different. Therefore, it is necessary to clearly examine the system of seizure and compensation of redevelopment and reconstruction projects. In addition, the issue of proper compensation for tenants, which is inevitable in the improvement projects, seems to violate the ideology of equality―'the same thing must be dealt with equally and the different thing differently.' By means of a common denominator of the so-called improvement project, the issue of proper compensation for tenants is integrated into the urban improvement law for form's sake, but the law must be improved to reduce the gap between reality and legal standpoints.
Another problem of tenant compensation is legal attitudes that do not distinguish the kinds of tenants. Tenants must be clearly distinguished into residential tenants and business (shop) tenants and then the frame of proper compensation must be established. Lawmaking must take the difference of contents of life measure and life compensation into account in addition to the amount of compensation.