土地利用計劃制限과 權利保護에 關한 硏究 = (A) study on the regulation of land planning and the protection of property rights

다국어 초록 (Multilingual Abstract)

1. Introduction
Even though the regulation of a land use plan as an administrative plan can be justified for the efficient management of national land, public peace, order and welfare, the restriction of private right of land property through the regulation of a land use plan should be permitted only under certain limitations.
Today we can see that intentional government infringement on individual freedom and property has been increasing for the promotion of public welfare. Although such infringements on private right of land property for public good are executed by government powers, they should not be unlimited and must be controlled inherently and socially under the constitution.
The regulation of a land use plan is a typical pattern among the regulation of plans, and is an example of the application of a binding plan. We can not deny the fact that the existing plans for land use have been strongly controlled by government powers for to the promotion of public benefit, while not paying any attention to the protection of private rights.
This dissertation aims to study the effective ways of relieving the right in advance and of protecting the right afterwards as a solution the problems which result from the regulation of a plan.
This study includes a discussion about the protection of rights which is closely related to the regulation of a land use plan. Domestic and foreign textbooks on administrative law and related dissertations have been consulted for reference.
2. Theory on Land Use Planning (Regulation of a land use plan)
The land use plan, as a part of the regulation of plans, is to adjust plural elements with respect to the limited land for public good, and to endow the land use with certain desirable orders, in order to prevent the disorder which may be brought about if we neglect it. It is a plan drafted for the purpose of using land appropriately, the most reasonably and effectively from a global viewpoint. A public enterprise and an induced measure can be important means of securing the practical efficiency of a plan in areas like national land planning or local regional planning.
What is important with regard to the protection of rights is the fact that the plan can bind the people, Moreover, a land use plan can have a great effect on regulating the general private rights, which we call a binding plan that is distinguished from a non-binding plan bearing some guiding nature.
A Korean typical binding plan includes the area for use and the regional system used in urban planning or land use planning. After investigating such systems in England, America and Germany where they have already achieved development, we will compare the use of the planning system of Korea and that of the advanced countries in order to grope for ways of practical application.
3. Pre-Protection of Right
The procedures of pre-protection of right, which are made at the formation of the plan, are generally realized by means of administrative procedures. The reason why we emphasize the procedural right in the case of a plan regulation is as follows : in order to minimize the damages of the related persons, we must receive the opinions of them and hold a hearing or a public hearing at an early stage. As a result, we can listen to their opinions and provide them with necessary information, which makes it possible to promote the land use plan that fits in with reality.
The pre-protection of right is prescribed in the law of administrative procedures. The law of administrative procedures (draft) was made in July 1987 as a part of the pre-protection of right but has not yet promulgated due to certain circumstances. So, the same procedural law has been hastened for enactment in 1996. But, as is generally known, it lacks the efficiency as the law of administrative procedure since it does not include the procedures for the planning course which can be considered to be the very heart of it. It should be complemented any way with respect to this.
4. Post-Protection of Right
The post-relief of right in the case of the regulation of a land use plan has such principal contents as the theory of loss compensation, the guarantee of the plan and the disposability under administrative procedural law. First of all, loss compensation will be the main part of compensation for the infringed private property right caused by the regulation of a land use plan. Article 23 of our constitution stipulates only lawful compensation. Accordingly, two kinds of theories exist about loss compensation : the theory of complete compensation and the theory of considerable compensation. The theory of complete conpensation argues that the compensation should be the complete recovery to the pre-infringed state, while the considerable compensation theory suggests that the amount of compensation can be insufficient considering public needs or social and economic circumstances.
The theory of relative compensation seems to be proper since it accords with the spirit of our constitution and the principles of a social nation. The second problem with the pre-protection of right is the occurrence of the right to request, that is they can require, the continuity of the existing plan and the trust in the plan and investment when their private property right is restricted by the land use plan formed by an Administrative sovereignty like the state. This theory originated from a judicial precedent in Germany. Though is has not been actualized in Korea, I wish only to introduce the existence of such a system. The third problem is the possibility that the plan for land use would be litigated administratively. A key point is that litigation is impossible when the nature of the plan is considered as legislation, while possible when considered as disposition. When the plan is binding, illegal or unjust, litigation against the plan should be permitted in order to relieve the right infringed by the plan. Accordingly it is judicially proper to admit the character of disposition to the binding plan.
5. Conclusion
(Decision of the plan and participation of the residents)
The protection of private right in the course of land use planning should focus on the pre-relief of right rather than on the post-relief of right. By inducing residents and related persons to positively participate in making plans, and by minimizing conflicts with government powers and litigation on the plan, we can realize what the plan intends to do in reality. The procedures for pre-protection of right have important significance with respect to protecting private property rights, as well as make it easier to realize the purpose of the plan. Considering such importance of the procedure, we expect that the procedures for confirming the plan under the law of administrative procedures would be complemented politically as soon as possible in order to fully protect private property rights.

목차 (Table of Contents)

• 目次 = ⅰ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• Ⅰ. 問題의 提起 = 1
• Ⅱ. 硏究의 目的 = 5
• 第2節 硏究의 範圍와 方法 = 6
• Ⅰ. 硏究의 範圍 = 6
• Ⅱ. 硏究의 方法 = 8
• 第2章 土地利用計劃制限에 따른 財産權制限의 法理 = 10
• 第1節 土地利用計劃의 法的 性格 = 10
• Ⅰ. 行政計劃으로서의 土地利用計劃 = 10
• 1. 行政計劃一般論 = 10
• 2. 土地利用計劃 = 33
• Ⅲ. 土地利用計劃制限과 土地財産權 = 37
• 1. 土地利用計劃制限의 意義와 必要性 = 37
• 2. 用途地域制 = 41
• 3. 우리나라의 用途地域·地區制·區域制 = 48
• 4. 開發制限區域(그린벨트) = 70
• 5. 土地開發의 制限 = 90
• 6. 建築物의 制限 = 96
• 第2節 外國의 土地利用計劃制度 = 99
• Ⅰ. 英國의 土地計劃制度 = 99
• 1. 土地利用計劃法制의 槪觀 = 99
• 2. 英國의 土地利用計劃의 特徵 = 109
• 3. 計劃許可制度 = 113
• 4. 結語 = 115
• Ⅱ. 美國의 土地利用計劃制度 = 116
• 1. 美國의 土地利用計劃 槪觀 = 116
• 2. 土地利用計劃 = 116
• 3. Nuisance의 法理 = 124
• 4. 用途地域地區制 (zoning) = 127
• 5. 結語 = 138
• Ⅲ. 獨逸의 土地利用計劃 制度 = 140
• 1. 土地利用計劃制度 槪觀 = 140
• 2. 都市建設法의 構成 = 141
• 3. 計劃의 體系와 內容 = 143
• 4. 土地의 建築的 利用計劃 = 155
• 第3章 土地利用計劃制限과 事前的 權利保護 = 164
• 第1節 行政節次(法)의 一般論 = 164
• Ⅰ. 行政節次(法)의 觀念 = 164
• 1. 行政節次(法)의 槪念 = 165
• 2. 行政節次의 必要性 = 166
• Ⅱ. 行政節次의 機能 = 168
• 1. 裁量統制의 機能 = 168
• 2. 權益保護의 機能 = 169
• 第2節 우리나라 行政節次法(案)上 計劃確定 節次 = 169
• Ⅰ.1987年度 行政節次(法)案 = 169
• 1. 槪觀 = 169
• 2. 計劃確定節次 = 170
• 3. 1987年度 行政節次法(案)의 問題點 = 171
• Ⅱ. 1996年度 行政節次法 (試案) = 173
• 1. 槪觀 = 173
• 2. 試案의 問題點 = 174
• 3. 私見 = 175
• 第3節 土地利用計劃의 確定節次 = 176
• Ⅰ. 計劃確定節次 = 176
• 1. 計劃確定節次의 意義 = 176
• 2. 計劃確定節次의 特色 = 177
• 3. 計劃確定節次의 成立 = 178
• 4. 現行法上 土地利用計劃樹立節次 = 180
• 5. 計劃確定節次의 效力 = 186
• 6. 計劃確定節次에 있어서의 權利救濟 = 186
• Ⅱ. 獨逸의 計劃確定節次 = 188
• 1. 獨逸에서의 計劃確定節次 = 188
• 2. 計劃確定節次의 內容과 特色 = 189
• 3. 計劃確定決定의 效力 = 192
• 4. 結語 = 192
• Ⅲ. 住民參加 = 193
• 1. 槪觀 = 193
• 2. 住民參加의 意義 = 194
• 3. 住民參加가 要請되는 根據 = 197
• 4. 結語 = 201
• 第4章 土地利用計劃과 事後的權利保護 = 203
• 第1節 土地利用計劃과 損失補償 = 203
• Ⅰ. 損失補償의 法的根據 = 203
• 1. 損失補償의 槪念 = 203
• 2. 損失補償制度에 관한 實定法的 根據 = 205
• 3. 收用類似侵害 = 208
• Ⅱ. 損失報償請求權의 成立要件 = 217
• 1. 公共必要 = 217
• 2. 財産權 = 218
• 3. 適法한 侵害 = 219
• 4. 特別한 犧牲 = 219
• Ⅲ. 損失補償의 內容과 節次 = 223
• 1. 補償의 範圍 = 223
• 2. 補償의 內容 = 226
• 3. 補償의 支給 = 228
• 4. 補償의 節次·權利保護 = 230
• 第2節 土地利用計劃과 計劃保障 = 233
• Ⅰ. 計劃保障請求權의 意義 및 必要性 = 233
• Ⅱ. 計劃保障請求權의 根據에 對한 檢討 = 233
• Ⅲ. 計劃保護請求權 肯定論의 根據에 대한 檢討 = 235
• 1. 損失補償請求權의 體系에 根據를 두는 見解 = 235
• 2. 計劃의 本質에서 根據를 찾는 見解 = 238
• 3. 結語 = 242
• Ⅳ. 地域·地區制와 計劃保障 = 243
• 1. 槪說 = 243
• 2. 地域·地區制 = 244
• 第3節 土地利用計劃과 行政訴訟 = 254
• Ⅰ. 行政訴訟對象 으로서의 處分의 槪念 = 255
• 1. 學說의 檢討 = 256
• 2. 判例의 檢討 = 263
• 3. 私見 = 264
• Ⅱ. 都市計劃決定과 관련 우리나라의 判例 = 265
• 1. 處分性을 認定한 判例 = 265
• 2. 處分性을 否認한 判例 = 266
• Ⅲ. 土地利用計劃과 處分性 = 268
• 1. 土地利用計劃의 事例別 檢討 = 268
• 2. 土地利用計劃과 處分性 = 275
• 第5章 結論 = 279
• 參考文獻 = 286
• ABSTRACT = 296