손실보상제도의 개선방안에 관한 연구 = (A)Study on improvement of loss compensation system

국문 초록 (Abstract)

지난 정부 때부터 행정중심복합도시, 신도시, 혁신도시를 비롯한 대규모 공공사업이 추진되었고, 최근에는 현 정부가 역점적으로 추진하는 보금자리주택건설사업과 4대강살리기사업 등으로 인해 보상에 관하여 많은 관심이 증대되고 있는 실정이다.
과거에는 도로․하천․청사 등 이른바 선단위 공익사업이 많았고, 이 때 수용되는 대상은 소규모 토지소유권에 지나지 아니하였으나, 현재는 택지개발, 댐․산업단지․신도시 등 이른바 대규모 면적개발 사업으로 방대한 재산권 침해는 물론 심지어 생활기반자체가 상실되어 원거리로 이주하지 않으면 아니 되는 경우가 발생하고 있다.
오늘날에는 국민의 경제생활이 고도화됨에 따라 공익사업으로 인하여 침해되는 재산권도 토지소유권에 한정되지 아니하고 재산권상실에 부대되는 정신적․경제적 손실도 다양화되고 있다. 그리하여 그 손실보상의 내용도 재산권 보상뿐 만 아니라 그 생활을 유지하기 위한 생활보상, 사업손실 보상, 정신적 보상 등 그 보상내용이 다양화되고 있는 실정으로, 현행 토지보상법체계에서 이를 해결하기에는 한계가 있다고 본다.
본 연구에서는 현행법상의 제도의 문제점을 고찰하기 위해 현재 시행되고 있는 보상법상의 요건과 내용을 검토하였으며, 실제 보상사례를 검토하여 전통적인 보상이론만으로는 설명하기 어려운 현실에서의 문제점을 파악하고, 그 개선방안을 제시하여 공익사업으로 인한 정당한 보상을 실현, 국민의 기본권을 보장에 보탬이 되고자 한다.

다국어 초록 (Multilingual Abstract)

The purpose of this study is twofold; 1) to provide solutions to compensation problems arising from large scale public projects that are conducted quite frequently these days by analyzing actual cases, and; 2) to find out ways to fulfill the "just compensation" stipulated in the Constitution of the Republic of Korea by analyzing actual cases of other countries.
The Article 23 section 3 of the said Constitution states that "expropriation, use, or restriction of private property from public necessity" should be applicable to "just compensation." In general, this is being used as a legal basis for handling compensation issues related to public spending projects. Aimed at suggesting better ways to deal with this issue, the problems arising from, and requirements demand by, the current compensation system were reviewed in order to explore ways to solve them. Looking into actual cases of compensation was helpful in making suggestions for improving the current system. On account of the fact that some of the cases containing problems were deemed unfit to be explained with existing laws, this study analyzed cases from other countries, comparing laws between countries in an effort to identify possible points to be considered for amendments of the current legal system of Korea pertaining to this issue.
Thus, based on actual case studies and comparison of pertinent laws of other countries, this paper came to the following five conclusions.
First, the ways of providing compensations need to be diversified so that the "just compensation" guaranteed in the Constitution can be realized. With the purpose of restricting a rise of land prices caused by compensation payments, alternative compensation policies along with tax credits need to be created.
The existing laws stipulate that compensations should be paid in cash to owners of the land that is to be used for public necessity. Yet, if the land owner, due to certain circumstances, wants to be paid in another way, instead of cash payments, a piece of land created as a result of the concerned project can be provided as an alternative compensation, as stipulated in relevant laws. However, according to the Land Compensation Act of Korea, such land compensations can only be applied to cases where the concerned public land project's final result is to be the only source of land compensation. A problem occurs when a project becomes delayed, making it impossible to compensate the land owner on time with the intended piece of land. This paper, therefore, suggests that it would be highly desirable to allow a surplus land in areas from other projects, after finishing their own land compensations, to be used for compensating other delayed projects' compensation recipients.
Another method to suggest is a system called an Alternative Land Assignment which can be described as a modified form of alternative land compensation. Under this system, the public project operator, even though the operator doesn't own an alternative land to provide as compensations, can still offer compensation recipients an alternative land. This is a method that will enable the government to proactively respond to the demand of land compensations. To be more specific, one way to go about it is to assign lands owned by entities such as the Korea Land and Housing Corporation, Urban Development Corporations in each region, or Korea Asset Management Corporation to be included in the pool of available compensation lands. Another way can be an assignment of ordinary land as an alternative compensation medium. The prerequisite to carry out any of these measures is to establish an effective information system about alternative lands.
From the perspective of deterring liquidity increase arising from compensation payments, active utilization of alternative land compensation is all the more important. However, on account of the lack of relevant tax credits, currently the land compensation accounts for approximately 0.8% of the total public project compensation methods. Therefore, addressing this problem would require various measures, such as; 1) an increase of the exemption rate of transfer income taxes, and; 2) an expansion of benefits conferred on corporations about their postponed taxes. These methods will facilitate a wider use of alternative land compensations. Also, exploring other plausible ways to reduce acquisition taxes for such organizations like an alternative land cooperative is deemed necessary.
Second, the gaps between different compensation amounts need to be bridged. As for agricultural loss compensations, even within the same public project, depending on districts or years, there are differences among them, which need to be addressed. The calculation method of ascertaining the exact income of compensation-receiving farms needs to be improved as well.
When cities and districts located in different provinces that are adjacent to each other jointly carry out the same public spending project, there can be differences in compensation amounts. If just because they are in different provinces, they differ in compensation by a wide margin, this inevitably will provide ample grounds for civil complaints. Therefore, if a province's aggregate agricultural income is below the national average, adjustments are needed in forms, such as; 1) the national average agricultural income level can be used as a replacement of the province's income, or; 2) the said province's agricultural income can be set as a temporary national average for this case. By reviewing these ways, regional differences in compensation can be bridged.
Also, within the same province, the same public project sometimes calculates its compensation costs according to different years. In this case, depending on when the negotiation settlement took place, annual fluctuations in agricultural income differences occur, giving rise to the case where the concerned year's compensation amount is below that of the average year. One way to improve this situation is to use either the rate offered in the compensation agreement year or the highest year's rate up to that point. Both of them are useful ways to resolve this issue.
Another case to consider is a situation where the aggregate agricultural income of a province, when failed be verified, results in compensation amounts offered based on the said province's arbitrary income calculated from the province's land price per unit. This practice has caused a host of civil complaints. In order to rectify this matter, this paper suggests that the current calculation method of agricultural loss compensation which requires evidence for the actual income should be abolished. Instead, a new system of compensation based on the average livestock farms of the province needs to be created. If this proves difficult, the current system needs to reduce its base calculation time frame from its current two years to three months, in line with other compensation calculation methods applied to the operation damage compensations and livestock damage compensations.
Third, as for the operation damage compensations and livestock damage compensations, the current three-month-period method has room for improvement. For example, reviewing the following aspects of this method will bring about a highly desirable outcome; 1) diversification of compensations according to operation closure periods; 2) easing of the operation closure compensation conditions; 3) improvement of the ways of setting the time for selecting the base number of livestock, and; 4) reform of the livestock compensation in the case of culling.
Currently, as for operation compensations, the general closure period applicable is up to three months. If a longer period is needed, up to two years is allowed. Yet, there are no specifications on when to grant that two year extension. Moreover, when it comes to the matter of operation facilities, because they require expertise and sophistication on the part of the facility owner, often on account of the lack of expertise of the project operator, compounded by other various reasons, the closure period accepted by the government for companion consideration tends to be limited to only three months. This was another factor that brought about intense civil complaints. Thus, establishing specific base standards in granting allowable closure periods for different operations is deemed highly desirable.
When it comes to compensating livestock owners, in the majority of the cases, the compensation standards are arbitrarily set, being another ground for causing civil complaints by setting off an inequality debate. Therefore, the current operation closure compensation conditions need to be eased. If the livestock owner wants to abide by the current system, the rules should be applied only after such easing of the rules is applied. Also, because reliance on operating profits can be controversial from an inequality perspective, due to the fact that each farm makes different profits, the base calculation period of the operating-profit-based calculation should, therefore, be limited to two years at maximum at all times. Plus, the basic number of livestock for compensation calculations needs to be expanded by tenfold of the current amount.
In setting livestock compensation amounts, due to the fact that the base standard number of livestock is such a crucial factor, the calculation should be based on the number of animals that exited at a time when the compensation agreement was reached. However, when there is a natural increase in the number of animals, they should be included as compensation targets as well, provided the increased number corresponds to the concerned animal's natural begetting rate.
As for the matter of providing compensations about culled animals, the current system can be improved by applying a new method; when the public project compensation and the culling compensation both need to be considered, only the gap will be paid, provided the public compensation amount is bigger than the culling compensation figure. The condition in applying this method is that the culling takes place at a farm that had been already included as a public project compensation recipient, obliging the government to pay both compensations.
Fourth, livelihood compensation schemes related to public projects need to be reviewed in order to systemize a whole host of relevant policies around this issue. When this is arranged, basic standards for issues pertinent to the Land Compensation Act of Korea can be established to have improved accuracy and efficiency. Such issues include migration responses, livelihood responses, migration housing provisions, migration settlement subsidies, migration assistances, and moving cost assistances.
This paper also suggests that the migration settlement amount needs to be increased. In the case of the linear development projects such as roads and railways, settlement compensations should be paid at a much higher rate compared to other public projects. The reason is that it is impossible to provide commercial areas or settlement areas in such linear projects, making it legitimate to provide much more generous compensations to target recipients.
Fifth, at the outset of a project preparation, a policy needs to be established that will prevent illegal speculations and other preservative measures spurred by compensation payments. In order to prevent pre-project speculations, all public projects, before being announced with the final selected areas, need to be armed with precautionary measures. For example, candidate areas can be prohibited in being engaged to speculative activities, by an issuance of a government order to that effect.
Plus, the current system needs further reform, so that in the planning stage of public projects, appointed project operators or prospective operators are provided with the right to conduct site investigations (aerial photography included). Along with that, conditions for providing welfare assistances warrant a serious overhaul in order for it to function more effectively.

목차 (Table of Contents)

• 제1장 서론
• 제1절 연구의 배경 및 목적
• 제2절 연구의 범위와 방법
• 1. 연구의 범위
• 2. 연구의 방법
• 제2장 손실보상에 관한 일반적 고찰
• 제1절 손실보상의 개관
• 1. 손실보상의 개념
• 2. 손실보상의 근거
• 3. 손실보상 법령체계
• 4. 손실보상의 요건
• 제2절 손실보상의 기준과 원칙
• 1. 손실보상의 일반적 기준
• 2. 손실보상의 원칙
• 제3절 외국의 손실보상제도와 내용
• 1. 미국
• 2. 독일
• 3. 일본
• 4. 외국제도의 시사점
• 제3장 손실보상 사례분석 및 문제점
• 제1절 사례분석을 위한 주요 손실보상의 내용
• 1. 개설
• 2. 재산권보장
• 3. 생활보상
• 4. 간접보상
• 제2절 손실보상사례 분석을 통한 문제점 도출
• 1. 공익사업 보상규모 추이
• 2. 토지 등의 보상
• 3. 영농손실보상
• 4. 영업보상 및 축산보상
• 5. 이주대책 및 생활대책
• 6. 토지등의 보전 및 불법행위
• 제3절 사례분석 결과
• 제4장 현행 손실보상제도의 개선방안
• 제1절 제도적 측면
• 1. 대체보상 확대와 세제지원 등
• 2. 영농손실보상
• 3. 영업 및 축산업 보상
• 제2절 운영적 측면
• 1. 이주대책 및 생활보상의 확대
• 2. 토지등의 보전 및 보상투기방지
• 제5장 결론
• 제1절 연구의 요약
• 제2절 연구의 한계 및 후속연구과제
• 참고문헌
• ABSTRACT