Korean | English

pISSN : 1226-251X / eISSN : 2733-8371

2020 KCI Impact Factor : 0.77
Home > Explore Content > All Issues > Article List

2021, Vol.95, No.

  • 1.

    A Study on the Reinforcement of Residents' Participation in Urban Planning

    Kim, Bong-Cheol | 2021, 95() | pp.1~15 | number of Cited : 0
    Abstract
    The formation of urban planning through the establishment, modification, and abolition of urban planning is related to the public interest for the development and use of efficient local spaces, as well as the private interest of residents' rights and quality of life. Therefore, legislative research is needed in which residents can effectively reflect their opinions or interests in the process of forming urban planning from a partnership with the Planning Administration. Residents' participation in the formation process of urban planning contributes to the formation of defect-free urban planning based on residents' opinions, etc., beyond matters related to the protection of residents' rights, etc. Therefore, it is necessary to discuss ways to strengthen residents' participation in the establishment of urban planning so that residents' participation can be effective. In this study, the significance and necessity of residents' participation in the establishment of urban planning (Ⅱ) are examined, and in this regard, participatory democracy in the administrative process, principles of cooperation in planned administration, transparency and openness of planned administration, protection of residents' rights, and preventive administrative control are discussed. This study also examined the method of residents' participation in urban planning under the Current National Land Planning Act (Ⅲ), which discusses the public hearings on metropolitan and urban master planning, and the right to propose and state opinions of residents in urban management plans. Lastly, various measures were proposed to strengthen residents' participation in the formation of urban planning(Ⅳ). The fundamental objectives of the measures are as follows: First, it is necessary to prescribe the procedures for residents' opinions in the basic survey stage in the National Land Planning Act. Second, it is necessary to hold public hearings in the establishment of urban management plans, and Measures are needed to make public hearings practical. Third, it is necessary to expand the scope of residents' right to propose urban management plans, and measures are needed to revitalize residents' right to propose urban management plans and secure its effectiveness. Fourth, measures should be taken to overcome the formalization of listening to residents' opinions in the establishment of urban management plans, etc. Fifth, it is necessary to strengthen the participation of residents' representatives in urban planning committees and the committee's openness.
  • 2.

    Legal Basis on Imposing Development Charges in Innovative City Development Project - On the basis of Supreme Court Decision 2019Du47728 Decided September 3, 2020 -

    Sung-Hoon Kim | Jang Kyo-Sik | 2021, 95() | pp.23~43 | number of Cited : 0
    Abstract
    In the Innovative City Development Project for balanced national development, developers made astronomical development gains. When the development charges was imposed, developers filed a cancellation suit on the grounds that the Innovative City Development Project was not listed as a project subject to the imposition in the Restitution of Development Gains Act. The lower court judged that development charges could also be imposed on Innovative City Development Projects as a result of deemed authorization or permission of the Housing Site Development Promotion Act. On the other hand, the Supreme Court judged that the Innovative City Development Project was subject to the development charges due to the interpretation of the Restitution of Development Gains Act and the Innovative City Act. However, the interpretation of the Supreme Court is problematic because the Innovative City Development Project is not a permission project prescribed in Article 4 [attached Table 1] No. 10 of the Enforcement Decree of the Restitution of Development Gains Act. Therefore, I think the logic of the lower court is more valid. It can be said that the Supreme Court clearly determined that it is determined individually about the scope of the deemed authorization or permission through the ruling. It has yet to provide that specific criterion of judgement. The same is true of the recently enacted General Act on Public Administration. In principle, the levy may be imposed on the counted permission projects as a result of the deemed authorization or permission. However, exceptions should be granted if it infringes on specific feasibility or predictability of the people. Therefore, it is reasonable to say that development charges are also imposed on Innovative City Development Projects because the approval of Housing Site Development Project under the Housing Site Development Promotion Act is on the deemed authorization or permission.
  • 3.

    Legal issues concerning the application of public implementers in the reconstruction project and housing improvement project in a city block - The boundary between the expropriation and request for sale according to the 2・4 real estate policy -

    홍성진 | 2021, 95() | pp.45~71 | number of Cited : 0
    Abstract
    The government announced a public-led housing supply plan for early stabilization of the housing market on February 4, 2021. To support the government's policy, the National Assembly proposed a partial revision of 「Act on the Improvement of Urban Areas and Residential Environments」 and 「Act on Special Cases Concerning Unoccupied House or Small-scale Housing Improvement」. The main Content of 「Act on the Improvement of Urban Areas and Residential Environments」 is newly establish ‘public implementers’ of Korea Land and Housing Corporation or a local government-invested public corporation in which expropriation and then supplies it to the owners of land in reconstruction zone. 「Act on Special Cases Concerning Unoccupied House or Small-scale Housing Improvement」 is similar. However, a careful legal review is necessary in that the public work of promoting rapid housing supply by exercising the right of expropriation in reconstruction and housing improvement project in a city block can overshadow the purpose and nature of urban improvement promotion. It is necessary to review the public work of the reconstruction project and the housing improvement project in a city block, examine whether the legislation is valid or not, focusing on legal issues that compare between the expropriation and request for Sale. In determining the public work of reconstruction projects and housing improvement project in a city block, the expropriation violates the principle of proportionality. Also, there are problems with the possibility of expanding the reckless acceptance method to other businesses and the abolition of the request for sale. In order to expropriation, the principle of proportionality shall be observed and paid just compensation. In addition, the request for Sale similar to expropriation is contributing relatively to the protection of the property rights of those who do not agree and therefore requires boundary setting for expropriation and request for sale
  • 4.

    Legal review to eradicate speculation and compensate for legitimate losses

    ShinPyeongWoo | 2021, 95() | pp.73~94 | number of Cited : 0
    Abstract
    Compensation for loss resulting from acceptance is the basic responsibility of a state that is faithful to the protection of private property rights guaranteed by the Constitution. Therefore, it is reasonable that the resulting compensation should be a legitimate compensation. However, speculative activities aimed at compensation such as planting seedlings and growing hives in places where public utilities such as the development of new cities are definitely expected by utilizing prior information like the so-called "LH situation" must be eradicated. The reason why such speculative activities are not eradicated is clearly the institutional aspect that the base point of loss compensation overlooks such speculative activities. On the other hand, it is clear that the compensation amount did not reflect the current market price from the perspective of those who were originally eligible for the consultation and acceptance of the indigenous people. In addition, under the current system, the owner is fundamentally excluded from the reduction of the remaining land unless there is a separate claim from the landowner, and there is also an institutional limitation where the valuation of the remaining buildings is significantly reduced. Therefore, 103 laws, including the Act on Acquisition and Compensation of Public Interest Projects, should supplement the institutional loopholes that restrict development activities such as land after the project recognition notice, and promote the revision of the statute to the time of project recognition. And for fair compensation, the actual transaction price, not the official land price, which is the standard for land compensation, needs to be reflected, and since the Emotional Assessment and Appraisal Service Act is enacted, it would be reasonable to revise the Public Interest Business Act in accordance with this. In addition, it would be necessary to institutionalise the project operator to clear the project completion date notice at the stage of the compensation assessment of the residual land, and to grant the project owner the right to claim the project.
  • 5.

    Urban planning and planning rights of local governments from the perspective of the Anglo-American legal system and comparative law

    Kim, Sung-Bae | 2021, 95() | pp.95~124 | number of Cited : 0
    Abstract
    The concept of urban planning can appear in various ways depending on the the social background of each country and the development stage or system of the city. No matter how urban planning is defined, urban planning ultimately exhibits the characteristics of restricting the use of land, the private property guaranteed by the Constitution. In legal perspective, urban planning is one of administrative planning, so it inevitably has the commonalities and limitations of general administrative planning. Urban planning is not a legal concept in the strict sense under the current law, but the term urban planning is generally used to mean the urban planning in the National Land Planning Act. However, in Article 5 of the National Land Planning Act, only “city plans”, which are spatial plans established by “city” (including Jeju-do) and local governments, “city” are called “urban plans”. This designation is difficult to agree with as it can share the basis of the misunderstanding that connects “city planning” to the beginning of the first modern urban planning. The first Western-style urban planning in Korea should find its origin in the Hanseong-bu urban remodeling project as part of the Gwangmu Reform in the late 1890s during the Korean Empire. Under the current law, urban planning is not a legal term in the strict sense, so it is necessary to understand urban planning in the broad sense of planning for spaces, etc. . Urban planning in the United States and Europe has had more of an impact than any other country has in the United States or Europe. In the United States, the powers of local governments are not limited only by state constitutions, state laws, or self-governing charters, but their limits are set in connection with the guarantee of rights under the federal constitution. The legal basis for the establishment of zoning exercised by local governments in the United States depends on the broad police power of the state and local governments. In the United States, state laws and state constitutions recognize and justify the planning authority of local governments based on the state's police power, but in general, state planning legislation is the minimum standard that local governments have when making plans. It sets the standards of Unlike Korea, urban planning in the United States started first in the private sector, and the basic local government adopted specific urban planning based on the police power and prepared related ordinances. bind the group. In the United States, urban planning is a plan at the level of local governments, but local governments in the United States are created within the control framework of state laws, and the planning authority exercised by the state or local governments is also limited to individuals guaranteed by state and federal constitutions. fundamental rights cannot be violated. The regional zoning system, which is the most commonly used land use regulation in the United States, is understood as an exercise of police authority, and urban planning is also understood as an exercise of police authority, and unlike land expropriation, it is understood that it proceeds without compensation. The provincial planning laws mainly list the types of mandatory plans that local governments must establish and factors to consider.
  • 6.

    Legislative Tasks of the Financial Aid System for Resettlement in Public Works

    Heo, Kang Moo | 2021, 95() | pp.125~144 | number of Cited : 0
    Abstract
    The financial aid system for resettlement was introduced in 1989 as part of Relocation measures. The financial aid for resettlement is a fund paid by the project operator to a person who loses the basis for living in the process of the operator implementing Public Works to provide residential housings. The financial aid system for resettlement contributes to the rapid implementation of Public Works at low costs without implementing Relocation measures in road projects or small-scale urban planning facilities projects, etc. However, there have been constant calls for improvement of the current financial aid system for resettlement due to equity issues with other Relocation measures and too insufficient amounts to restore previous living conditions. Problems such as conflicts with residents have been building up because the financial aid system for resettlement in Public Works does not reflect the reality of environmental changes in economic society, such as rising housing prices and costs. The purpose of this study is to examine the legislative history and legal nature of the financial aid system for resettlement in Public Works, derive the problems of the financial aid system for resettlement, and present the direction of improvement in the legislative policy of the financial aid system for resettlement as follows. First, given the increased demands for compensation for living, the increase of vacant houses, and the hollowing of rural communities, the minimum household standard required to establish a resettlement plan needs to be strengthened from 10 to 5. In the mid- to long-term, a legislative policy needs to be implemented to abolish the minimum household standard, which is "less than 10 households who wish to move to a resettlement place among those subject to Relocation measures" in order to enhance equity between "the resettlement targets by a public project that establishes a resettlement plan" and "the resettlement targets by the payment method of the financial aid for resettlement". Second, the upper and lower levels of resettlements funds should be flexibly set in conjunction with housing prices and costs. To this end, it is necessary to change the method of revising the 「Implementation Rules of the Act on Acquisition and Compensation for Land, etc. for Public Works」 to the method of issuing the Public Notification of the Minister of Land, Infrastructure and Transport annually. Third, as for urban planning facilities (road) projects implemented as part of or in connection with Public Works, such as redevelopment and reconstruction projects and multi-housing construction projects in residential environment improvement zones, the legislative policy needs to be improved to make an exception in the direction to supply apartments in the project area, instead of resettlement payments, in the case that those subject to Relocation measures wish to receive apartments.
  • 7.

    A Study on the Direction of the Amendment of National Land Planning and Utilization Act for the Construction of Carbon Zero Cities

    Sang Hoon Han | 2021, 95() | pp.145~162 | number of Cited : 0
    Abstract
    It is very effective way to convert existing cites to the Carbon Free Cities in order to reduce the quantity of carbon emission and prepare the global warming threat. Based on this understanding our government established ‘2050 Carbon Neutral Strategy’ in December of 2020 and this strategy is under going. Photovoltaics(PV) is cost-effective system to produce carbon free electricity. And enhancing the quantity of the electricity through the provision of PV systems is very definite method for the construction of Carbon Free City. However, PV system not only requires huge amount of land and space but also many parts of PV system are made of harmful chemical materials it is really hard to say that the PV systems are environment friendly facilities. In case of our nation, PV systems are ruled by various acts such as Building Acts, Electricity Act, and Local Ordinances based on National Land Planning and Utilization Act. But there is no single Act or Legal Code which governs the PV system’s locational conditions and relationship between neighboring regions and etc. In other words, there is no legal standard which enables to consider the location of PV system in planning perspective. Most conflicts over the distance control for the PV system between local authorities and government were caused by the operation of permission of development activity based on National Land Planning and Utilization Act. However, National Land Planning and Utilization Act does not include any regulation for construction of Carbon Free City and distance control for the PV system in planning perspective. For these reasons current National Land Planning and Utilization Act needs to be amended to incorporate those important regulations from ‘Guideline for establishment of Low Carbon Green City’ in order for providing legal basis for considering the location of PV system in planning perspective.
  • 8.

    Legislative Tasks of the Financial Aid System for Resettlement in Public Works

    Chung Tae Jong | 2021, 95() | pp.163~177 | number of Cited : 0
    Abstract
    The spread of COVID-19 that began at the beginning of 2020 has already weighed down on citizens’ daily lives for two years. The dedication of medical workers, such as the development and distribution of vaccines for infectious diseases, and the efforts and sacrifice of quarantine authorities responsible for the spread of infectious diseases and isolation and treatment of infected people are also lacking in audit and encouragement. However, such administrative activities during the active and passive quarantine process have resulted in an unintended number of victims, and the period has passed for about a year and a half. Through MERS and SARS, the basis for compensation for loss due to administrative action of infectious diseases was prescribed in the Infectious Disease Prevention Act, which paved the way for compensation for loss. However, since the contents were limited to medical institutions and related work due to the outbreak of infectious diseases, it was impossible to cause a huge loss due to restrictions on the movement of citizens and business of small business owners caused by COVID-19. The government’s various disaster support funds could not be a fundamental solution, so research and legislative discussions on operating losses due to prolonged business restrictions were conducted, and the National Assembly recently revised the Small Business Act to legislate related loss compensation. In this article, the basic framework of loss compensation caused by the administrative action of infectious diseases is reviewed, the legislative basis for loss compensation caused by restrictions on the operation of small business owners caused by COVID-19, and the areas to be supplemented in the administrative legislation process. It is hoped that this discussion will help with economic activities that have been dampened by the administrative action of infectious diseases and the appropriate compensation discussions.
  • 9.

    A Legal and Institutional Study on the Treatment Improvement in Cancer Patients

    宣 恩 㶼 | 2021, 95() | pp.179~197 | number of Cited : 0
    Abstract
    According to the National Cancer Registration Statistics for 2017 of having been announced on December 24, 2020, the patients with the presence of cancer stood at 1,870,000 people(3.6% of the whole nation). In terms of the cancer incidence rate, the age-standardized incidence rate per 100,000 people came to 282.8 people, thereby having been down by 6.6 people(2.3%) year on year. This cancer incidence rate grew by 3.7% until 2011 following 1999 and then is reducing by about 2.6% every year after 2011. If our people would survive to life expectancy(83 years old), the probability of getting cancer amounted to 37.4%. Cancer is being estimated to occur in 2 people(39.8%) out of 5 people as for a male(80 years old) and in 1 person(34.2%) among 3 people as to a female(86 years old). Seeing this trend, cancer need to be recognized as a social issue, not an individual matter, and will be able to be considered to require the quick response from the state and local governments. With regard to this, the country stipulated 「Cancer Control Act」 and then is comprehensively establishing and implementing a policy pertinent to the prevention, treatment and research of cancer. In 「Hospice, Palliative Care, and Life-Sustaining Treatment Decision-Making Act」, it is targeting cancer patients among the patient subjects in the hospice palliative care and end-of-life process, thereby prescribing a right in the cancer patients’ life-sustaining treatment decision. But there is a limitation in legislative introduction or effective policy for substantially upgrading cancer patients’ treatment. A rise in cancer patients is definitely expected henceforth. Thus, the management of national and local governments to improve treatment can be mentioned to be more needed. Accordingly, there is a need to enact the responsibilities of the state and local governments based on the legal basis for enhancing the treatment of cancer patients while regarding cancer patients as the socially disadvantaged who will need to be further protected in our society. Hence, concerning the treatment of cancer patients, there is a need to make it a grounded law in the treatment improvement by specifying the rights of cancer patients through the maintenance of the law in 「Cancer Control Act」. In the current 「Notice of the medical expenses support standard, etc. for cancer patients」, there is a need to clearly state the regulations on a financial support for cancer patients in a law and to define cancer patients as the socially disadvantaged, thereby being necessarily made even the livelihood support for it together. Additionally for the cancer patient counseling and management, the state and local governments should provide a variety of the welfare treatments through the expansion of the professional workforce. A positive support for psychotherapy of cancer patients leads to increasing the treatment improvement in cancer patients. Managing cancer patients who grow down the road leads to a rise in survival rate, thereby likely coming to bring about improving the quality of life in cancer patients.
  • 10.

    Legislative Policy Improvement on the Legal Concept of Lonely Death

    임 혜 자 | Kim, Dong-Ryun | 2021, 95() | pp.199~227 | number of Cited : 0
    Abstract
    Due to urbanization and civilization, one of the phenomena that began to occur is the increase in the number of people living alone due to the development of various convenience facilities, the spread of individualist values, human rights, and differences in personality. Recently, however, live together lonely death have occurred, raising the risk. In the beginning, most of the elderly died alone due to unemployment or economic ability, but as the number of single people has increased due to the spread of individualist values and conflicts of human rights, sense of rights, and values, there are also lonely deaths regardless of economic power and age. The Lonely Death Prevention Act was enacted in 2020, but it was legislated without reflecting it, and I would like to make some questions and suggestions. First, differentiation is needed for the elderly. Instead of judging the elderly as senior citizens over 65 years of age uniformly, the method of solitude needs to be expanded to middle-aged people or judged based on the age of 55 or 60 or older. Second, the concept of solitude needs to be diversified. Most ordinances target elderly people who live alone, so policy cannot be taken into account for solitary vipers. Therefore, it is necessary to prevent solitude by adding this. Through this, the standard maintenance of statistics based on the time of discovery of the body and the time of death should be made, not on the current statistics on the deaths of unconnected people. To this end, an amendment to “The Lonely Death Prevention Act” is required.
  • 11.

    A Review on the Current Aviation Act in the Aspect of the Aviation Safety - Focused on the Urban Air Mobility -

    Seok, Ho Young | 2021, 95() | pp.229~252 | number of Cited : 0
    Abstract
    Today, drones have evolved from the past ultra-light unmanned aerial vehicles in various sizes and power formats, and major drone-related countries such as the U.S, South Korea, Japan and China are leading the way in building human-powered manned drones or Urban Air Mobility(UAM). ‘Urban Air Mobility(UAM)’ is emerging as a three-dimensional future transportation to address urban population growth, road traffic congestion and environmental problems, with the global market expected to grow at an annual average of 30% between 2021 and 2040. Urban Aviation Mobility (UAM) is expected to be commercialized in earnest after 2030, and Korea is also trying to solve problems such as establishing related business models and developing new technologies by comprehensively considering operation safety, public convenience, and profitability by announcing K-UAM roadmap. ‘Urban Air Mobility(UAM)’ is expected to play a big role as a future eco-friendly transportation through convenience of the public and connection with existing transportation such as roads and railways by allowing minimal space to be operated without a runway. As early drones began as ultra-light unmanned aerial vehicles for military reconnaissance and have now evolved into the aircraft which can also transport passengers, ‘air safety’ will be the most important factor in its operation, this paper seeks to look at the current legal system related to urban aviation mobility and suggest a improvement plan.
  • 12.

    A Study on Housing Taxes in the State of California, USA

    Choi, In Ho | 2021, 95() | pp.253~271 | number of Cited : 0
    Abstract
    The purpose of this study is to investigate the housing-related tax system in California, USA, and to suggest directions for improvement of the housing-related tax system in Korea. The temporal scope of the study is limited to the period from 1917 to 2021, when the real estate licensing law was first promulgated in California. The research method utilizes a comparative analysis method of literature data that collects and analyzes legal data and statistical data of the housing-related tax of the state government of California, USA. As a result of the analysis, First, the heavy taxation of housing-related tax needs to be adjusted in consideration of not only the Korea-US FTA friction but also the international level. Second, the 12% acquisition tax due to the donation of 300 million won or more of housing (adjusted area) should be lowered Thirdly, the property tax needs to be adjusted upwards gradually, and the upper limit of the property tax should be stipulated every year. Fourth, if the tax base is 1 billion won or less, the estate tax rate and the gift tax rate should be drastically lowered. In this case, the deduction limit should be raised. Lastly, it is necessary to seek a system such as California's Proposition 13 to prevent excessive heavy taxation and monopoly by the housing-related tax authorities, and to realize justice and democracy in taxation.
  • 13.

    A Comparative Law Study of Judicial Remedy for Climate Change

    Kim, Jong-Woo | Kim, Sang-Kyum | 2021, 95() | pp.273~298 | number of Cited : 0
    Abstract
    There is a problem that environmental problems are extensive and victims cannot be identified. In particular, it is difficult to prove a causal relationship if basic rights are violated due to large-scale environmental damage such as abnormal weather conditions. In addition, since the precedent is rare, it is difficult to obtain relief from basic rights. However, as the resolution of the problem of abnormal climate is becoming more important internationally, the necessity of discussing the environmental damage problem in Korea is also increasing. The Kyoto Protocol, to which Korea was a member, ended on December 31, 2020. And Korea has come to a situation where it has to comply with the Paris Agreement, which urges countries around the world to reduce greenhouse gas emissions and participate in climate change. The problem is that in the Paris Agreement, unlike the Kyoto Protocol, Korea is also obligated to reduce greenhouse gas emissions. European countries have been thinking about climate problems in the early days, and further from the policy side, the legal interpretation is continuing. In some European countries, lawsuits for infringement of basic rights due to abnormal climate are being filed, and countries such as Germany, New Zealand, and the Netherlands are gradually recognizing the national environmental protection obligation. In particular, the recent ruling of the Berlin Administrative Court in Germany is noteworthy. In Korea, there have not been many cases of public legal litigation regarding the violation of fundamental rights due to the environment. However, unlike other countries, since environmental rights are guaranteed as fundamental rights under the Constitution, there is a basis for remedies if environmental rights are violated through the constitutional complaint adjudication system. In fact, the cases that were brought to the Constitutional Court, the installation of safety wire mesh on the windows of the bathroom in a single living room, and the absence of noise regulation standards due to the use of loudspeakers in public office elections are precedents that actively stipulated the protection of environmental rights and the exclusion of violations. Of course, the incident is a specific damage situation with a clear causal relationship compared to the large-scale damage caused by climate. However, considering the flow of precedents of the Constitutional Court, which recognizes the violation of environmental rights and judges the state's obligation to protect environmental rights, the judicial process for climate litigation and other large-scale environmental damage is considered. It can be seen that the basis for discussion has been prepared. Therefore, by analyzing existing discussions and overseas cases, I would like to discuss legal remedies for violations of environmental rights in Korea.