Public Land Law Review 2022 KCI Impact Factor : 1.14

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pISSN : 1226-251X / eISSN : 2733-8371
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2021, Vol.96, No.

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  • 1.

    Urban Planning and Planning Power of Local Governments

    Kim, Sung-Bae | 2021, 96() | pp.1~42 | number of Cited : 3
    In analyzing the realization of local autonomy in spatial planning, the authority to investigate, prepare and establish a spatial plan related to the area of ​​local government (①planning authority), and to provide stakeholders such as residents for the established plan. Whether the authority to verify, control, and confirm interests (②confirmation or decision authority) and the procedural authority to participate in the planning process related to or included in one’s autonomous area are guaranteed (③authority to participate), furthermore, conflicts It will be necessary to determine whether the authority to cooperate with, negotiate, and coordinate with independent local governments (④mediation authority) is granted. If it is called a local government and the authority of ① to ④ is not granted, it should be judged that the planning right of the local government is essentially infringed. Since the most essential authority among the rights of ①∼④ is the authority of ②, if the ② authority is not granted, the infringement of the planning authority is highly suspected, and it is necessary to determine whether the other authority is intrinsically violated depending on whether and to what extent it is granted. Currently, most of the spatial planning related laws have a dual committee system as a way to guarantee local autonomy or to increase the participation of experts. However, if the composition of the Central Committee itself does not have any democratic legitimacy or representation and it is structured and operated by the discretionary judgment of the executives and heads of the competent central administrative agencies, it will only play the role of formal participation and formal justification. While discussing local autonomy, autonomy is mainly explained by traditional administrative classifications such as organization, finance, and personnel. It is an essential administrative action that accompanies the government, and the modern meaning of administrative planning is not only to combine purposes and means, but also to communicate with residents and coordinate stakeholders through participation in the planning process. In spatial planning, the planning authority of a local government requires not only the establishment and confirmation (decision) of the plan, but also the procedural guarantee that it can participate in the establishment of other plans closely connected with the local government. It is true that the planning authority of local governments has been gradually expanded and guaranteed in the field of urban planning. But it is still lacking. One of the common features found in the current spatial plans in Korea is that the city planning authority is not guaranteed at all in the case of autonomous districts and counties within metropolitan areas. If the process of establishing a plan and the process of deliberation and finalization of the plan can be separated, it would be desirable from the level of horizontal separation of powers or inspection to separate the establishment subject. Establishing a spatial plan is a task that requires effort and time for practical data collection and data comparison to collect numerous related data, evaluate interests, and predict the future. It is more efficient to do it, but it is preferable to check and confirm the drafting plan through the process of democratic legitimacy and interest adjustment based on the representation of the residents at the local council, the legislative body of the local government. The composition of the expert group that plays a role is composed of various forms for each local government, but it is necessary for the state to prepare certain directions and guidelines. A mechanism should be provided to smoothly resolve disputes between local governments or between local governments and central administrative agencies and to prevent them in advance in cases where the eligibility for plaintiffs in administrative litigation of local governments is generally denied.
  • 2.

    A Study on the Excess Profit Recovery System of Reconstruction Projects

    Jeong Hoe Gun | 2021, 96() | pp.43~73 | number of Cited : 1
    The reconstruction project is a project to improve the residential environment in an area where is the term "fundamental infrastructure" good but the apartment houses that are old or defective buildings are dense. This shall be done by constructing and supplying apartment houses, ancillary facilities, welfare facilities, and officetels in accordance with the management and disposal plan in the maintenance area or in the non-renewal area. The reconstruction project is implemented through the procedures of the project preparation stage, the project implementation stage, the management disposal plan stage, and the project completion stage. The development profit of the reconstruction project is the non-high income obtained without one's own efforts. Acquisition of development profits causes speculation on land and unfair distribution of income. Therefore, development profits generated from the land were recovered and distributed appropriately. In addition, with the purpose of recovering development profits to prevent speculation on land and for efficient use of land, a system for recovering excess profits from reconstruction was implemented. The reconstruction excess profit recovery system was introduced in 2006 and applied in 2008. After that, it was postponed from 2013 to 2017 due to the sharp downturn in the housing market. It was implemented again in 2018 due to the rise in housing prices and the spread of speculation. Reconstruction excess profit recovery system refers to the imposition and collection of reconstruction charges on the excess reconstruction profits obtained from the reconstruction project. Reconstruction charges are calculated by applying a progressive tax rate according to the burden rate. The contribution rate of the reconstruction charge is higher than the basic tax rate of income tax. It has the character of a transfer tax and thus has the character of double taxation. Reconstruction levy directly imposes a financial burden on members. There is room for controversy over the time of imposition, the rate of burden, and protection for those who have no income, which are the criteria for calculating the reconstruction fee. Therefore, there are cases where the reconstruction project is canceled or delayed, so that the efficient reconstruction project is not implemented. Therefore, in this paper, the problems and improvement plans of the reconstruction excess profit recovery system are presented.
  • 3.

    A study on Securing the Appropriateness of Population Estimation in the Urban Master Planning

    Cho, Jin-Woo | 2021, 96() | pp.75~102 | number of Cited : 1
    In the process of high economic growth in Korea, the population increased with a high fertility rate, and people flocked to cities. As many problems occurred due to the rapidly increasing population of cities, the Urban Planning Act solved these problems by preparing the urban master plan and urban management plan. In a time when the population is declining due to the low birth rate and aging population, a fundamental change is inevitable in the urban master plan stipulated on the premise that the existing population is increasing. However, although local annihilation is becoming a reality due to population decline, local governments are establishing basic urban plans on the premise that the population will increase as in the past. In the urban master plan established by local governments, overestimating the future population, the gap with the reality of declining population is gradually increasing. The urban master plan presents an image of the future of the city, and an increase in the population gap, which is the basis of the plan, leads to indiscriminate development of the region and waste of finances, leading to the decline of the city. In order for the urban master plan to perform its original function by bridging the population gap between the plan and reality, local governments should be able to utilize more diverse population indicators to establish the urban master plan and to establish more flexible plans. do. In addition, more specific control measures are required for population growth caused by social factors in the planned population estimation. Recognizing that population movement in the era of population decline is a zero-sum game for local governments, measures that enable neighboring local governments to interconnect the urban master plan should also be considered. Above all, it is also necessary to strengthen the capacity of local governments to establish urban master plans and to provide a basis for easily sharing data for rational establishment of urban master plans between the state and local governments. In the era of population decline, if local governments overestimate the population according to the urban master plan as in the past, the current difficulties will be accelerated. It should be possible to establish a basic urban plan suitable for its original function by inducing population estimation through more diverse methods and controlling excessive population estimation.
  • 4.

    Suggestions for affordable housing and architecture.

    Yoon, Jinah | 2021, 96() | pp.103~138 | number of Cited : 1
    Um die großen Probleme auf dem Wohnungsmarkt wie deutliche Mietsteigerung und vielerorts spürbare Engpässe in Deutschland zu lösen, hat das Bundesministerium für Umwelt, Naturschutz, Bau und Reaktorsicherheit (BMU) das “Bündnis für bezahlbares Wohnen und Bauen” geschlossen, und zwar mit den Ländern, kommunalen Spitzenverbänden, der Wohnungs- und Baurwirtschaft und anderen gesellschaftlichen Aktueren. Bemerkenswert bei dem Bündnis für bezahlbares Wohnen und Bauen ist seine Bemühung, den Wohnungsproblemen durch das Gespräch zwischen den verschiedenen betroffenen Gruppen entgegenzuwirken: An der Verwaltung des Bündnisses für bezahlbares Wohnen und Bauen, die unter Federführung des BMU steht, haben verschiedene Fachleute aus unterschiedlichen Sektoren teilgenommen und den Versuch unternommen, eine Grundrichtung der Wohnungspolitik festzulegen. Dabei haben sie sich bei unterschiedlichen Interessen auf konkrete Maßnahmen verständigt, um unverzüglich mehr bezahlbare Wohnungen zu schaffen. Aus dieser Bemühung in Deutschland, so meine ich, können wir Ansatzpunkte erhalten, um unsere Wohnungsprobleme zu erleichtern. So sollten wir wie in Deutschland ein Bündnis aufbauen, das die Interessenkonflikte zwischen verschiedenen Teinnehmern am Wohnungsmarkt entschärfen und damit eine vereinbare rationale Wohnungspolitik gestalten kann. Meiner Ansicht nach kann das “Housing Policy Deliberative Committee”, das aufgrund des “Framework Act on Residence” errichtet worden ist, als ein solches Bündnis funktionieren. Wenn man an dem “Housing Policy Deliberative Committee” möglichst verscheidene Akteure teilnehmen lässt, also wenn dort die Vertreter aus Regierung, Kommunalbehörden, Bauwirtschaft, Baugewerkschaft, Anwohner usw. konstruktiv zusammenarbeiten, können “minimum residential standards” sowie “recommended residential standards” nach dem “Framenwork Act on Residence” auf sinnvollere Weise festgelegt werden. Diese Kooperation zwischen öffentlichen und privaten Partnern könnte auch dazu beitragen, den sozialen Wohnungsbau zu fördern, mehr bezahlbaren und hochwertigen Wohnraum zu schaffen. Dabei möchte ich mit Nachdruck darauf hinweisen, dass sich das Bündnis für bezahlbare Wohnen und Bauen in Detuschland nicht nur dafür eingesetzt hat, lediglich mehr Wohnraum zu schaffen, sondern auch dafür, mehr bezahlbaren Wohnraum eine nachhaltige Qualität zu schaffen.
  • 5.

    Control and Limitation of Discretion- focused on the cases -

    Cheong, Sa Eon | 2021, 96() | pp.139~155 | number of Cited : 0
    As the function of the welfare state is expanded, legislation and administration are more focused on protecting the rights and interests of the people, and the discretion of the administration plays a very important role in the administrative life relationship of the people. Therefore, the administrative agency is given discretion to select and decide the most purposeful form of action. If the administrative agency deviates or abuses discretion and violates the rights and interests of the people, it is reasonable to control such discretion. Generally, control is discussed around precedents in relation to control standards, such as legislative, administrative, and judicial control methods, and administrative basic laws have been enacted. However, control can have adverse effects. The problem with this adverse effect is the limit of control. Legislative control can undermine the resilience and rationality of administration, administrative control can infringe on the speed and activism of administration, and judicial control has limitations that can lead to a vacuum in the right relief. Therefore, the issue of discretion control of administration should be collected to prevent possible adverse effects and to make it more rational and objective exercise of discretionary power.
  • 6.

    A Study on the Financial Management System of Local Governments - Focusing on the Cases of Yubari city in Japan -

    Shin, Bong-Ki , HWANGHEONSUN | 2021, 96() | pp.157~184 | number of Cited : 2
    Recently, the population concentration in the Seoul metropolitan area has intensified in Korea. Despite the emerging problems of aging and low birth rate society, the population is moving further to the Seoul metropolitan area. In other words, local governments except on the metropolitan area should consider alternatives to the issue of population outflow. Because the outflow of the population is also a cause of poor local finances. If local finances become poor, there is a possibility that local governments will have to worry about the existence of local governments. Instead of leaving these issues to the responsibility of each local government, the state needs to act more actively to improve the financial health of local governments. This guarantees substantial local autonomy under the Constitution. As part of the plan, there was discussion about the introduction of a local government bankruptcy system in 2014. However, local government bankruptcy system has been not introduced. However, due to the centralization of the population into the metropolitan area, the financial crisis of local governments is still ongoing. Recognizing these problems, this paper will examine the institutional consideration of what the state should do to ensure and revitalize the existence of local governments. In that way, we will focus on the case of Yubari City in Japan. An introduction to the city of Yubari is also conducted in many Korean literature. This paper focused on taking a closer look at the current situation, as examples such as Yubari city’s case can occur in Korea as well. In general, if the accounting of local governments is not reasonable, residents may raise questions about it. In the case of Yubari City, it was difficult for residents to understand such accounting conditions. In the end, we can see that the part that cannot be solved by the autonomy of the residents needs to be managed by the state. Such supervision can be done by administration of the rule of law, such regulations can be prepared and implemented in the law. If such administration of the rule of law is not carried out, intensive control by the state may be carried out under the guise of management of local governments. What should be thought of from the case of Yubari City is that when management is carried out by the state, the debt repayment period should be set based on the quality of life and administrative services of local residents, not focusing on the figure of debt reduction. This will achieve both the enjoyment of balanced administrative services and the financial management of local governments.
  • 7.

    Legal and Institutional Studies on the Development Plan of the Autonomous Police System

    Lee, Jae-Ran , Shin Yeon Su , Cho Kye Pyo | 2021, 96() | pp.185~212 | number of Cited : 1
    It has been more than 100 days since the autonomous police system was implemented nationwide. In the meantime, the autonomous police system has been piloted in Jeju Island since 2006 in order to realize decentralization of autonomy. In the case of the Jeju Autonomous Police, it was separated from the Jeju National Police Agency and a separate Jeju Autonomous Police Corps was operated. However, the autonomous police system, which will be implemented nationwide from July 1, 2021, has been criticized for adopting a method of dividing affairs among existing police organizations without establishing a new organization. The current autonomous police system is a system in which the national police organization performs the duties of the autonomous police. This leads to overload and confusion in the work of front-line police officers. In the process of carrying out their duties, the Autonomous Police Committee is experiencing operational problems because it is not properly consulted with local governments on the issues of personnel and budget rights of the police. The autonomous police system is divided into the national police, investigation police, and autonomous police, and the national police handles information, supplementary affairs, and foreign affairs. The police are in charge of daily life-related affairs such as safety, transportation, women, school violence, and sexual violence. However, in this system, one organization handles state affairs and autonomous affairs, and the police station, a state institution, is under the direction and supervision of the autonomous police committee in the process of handling autonomous affairs, so many problems are exposed in the implementation process. In addition, centralized laws and practices are still maintained, and police officers in the field do not realize the self-governing police. The job of the police is to maintain public well-being and order. Therefore, it is necessary to clarify the authority of the self-governing police committee and to realign the status of the police officers in charge of autonomous police affairs in order to provide a police for residents and a self-governing police suitable for the era of localization. In addition, it is necessary to overcome the disconnection of communication by forming a consultative body for business cooperation between the police agencies performing autonomous police affairs and general administrative agencies.
  • 8.

    Study on the Public sector cloud regulation status and improvement tasks- Focusing on the study of self-regulation and regulated self-regulation -

    SUNG BONGGEUN | 2021, 96() | pp.213~241 | number of Cited : 0
    Corona virus is causing many changes in the public sector as well as in the private sector such as our society and businesses. Based on Information and Communication Technologies (ICTs) and the 4th Industrial Revolution, the use of cloud services has exploded not only in schools, businesses, markets and homes, but also in the state and local governments. Now, cloud services are becoming increasingly active not only in the private sector but also in the public sector. Recently, the Korean government is expanding cloud adoption in the public sector in order to implement the ‘digital innovation plan’ at the Cabinet meeting. Cloud services are becoming essential even in the public sector in that they can manage and process rapidly increasing traffic in a disaster or high-risk society that requires non-face-to-face and contactless methods due to the Corona crisis. The Korean government enacted the 「ACT ON THE DEVELOPMENT OF CLOUD COMPUTING AND PROTECTION OF ITS USERS」. In such a situation, if the cloud service provider commits an act that has defects in reliability, safety, security and technology, the damage occurring in the public sector becomes a serious situation that cannot be resolved only by post-remedies. However, the state cannot monitor and regulate cloud services individually. Therefore, important issues such as whether it is possible to obtain an orderly legal approach while respecting the autonomy of the cloud service market and, if possible, what kind of method should be taken, are becoming important issues. In this paper, the focus of this study is on effectively improving the regulation of public cloud services through self-regulation and regulated self-regulation. The key is to maintain the level at which public sector cloud services are properly provided as public services. Now, public goods are not only important for tangible objects such as personal property and real estate, but also public services such as public sector cloud. Combining the laws and regulations, the Minister of Science, ICT and Future Planning may cancel the registration of a digital service registered in the use support system through the review of the committee. Cancellation of the Minister's registration is a traditional high-authority regulation, and it is a single act of power by the administrative agency, which corresponds to the disposition under Article 2 Paragraph 1 of the Administrative Litigation Act. If the reasons for cancellation of registration are classified, there is a case of ex officio cancellation issued to remove defects that have been incorrectly registered. While the government completely amended the 「Procurement Business Act」, it is required to implement a 'digital service contract system' so that 'regulated self-regulation' can be used in various digital service fields such as public sector cloud services. Through this, it is possible to take and analyze the method of mixing so that public sector cloud services are properly provided. Improvements and changes in these laws are justified because they are to revitalize the market by utilizing an appropriate regulatory mix. In the future, various regulations should be utilized more flexibly and effectively.
  • 9.

    A study on the Legistration of Incentives for CCUS - Focused on U.S and Canada -

    Kim Myung-Yeop | 2021, 96() | pp.243~268 | number of Cited : 2
    Carbon Capture, Utilization and Storage(CCUS) is a technology that can capture and make effective use of the high concentrations of CO₂ emitted by industrial activities. But due to the relatively high cost of capital that applies to CCUS investments because of their perceived risk, In the early stages of deployment for CCUS equipment, capital support from government is likely to be necessary to mobilise private capital in the majority of cases. Already U.S federal government is employing a range of policy tools and incentives including tax credits and direct government grants to address roadblocks and challenges to promote CCUS projects through various legislation. Above all, The tax credit(Internal Revenue Code [IRC] Section 45Q) for carbon oxide sequestration is intended to incentivize investment in carbon capture and sequestration. The 45Q tax credit has been expanded a number of times since it was initially established in 2008, most recently at the end of December 2020. IT offers a tax credit that varies from just under $12 up to $50 for each metric ton of carbon captured and sequestered, depending on the timing and type of project. And it clarified how long credits would be available for 12years, beginning when the carbon capture equipment is in service providing more certainty for investors. In addition to the 45Q, the U.S. Congress has enacted various acts for CCUS For example, the Carbon Capture Modernization Act will improve the utility of the 48A tax credit and enable investment in carbon capture to reduce emissions from the power sector. The bill acts as a companion to other financing efforts, such as the 45Q tax credit, to dramatically spur more deployment of carbon capture,. In Cnada, Budget 2021 proposes to introduce an investment tax credit for capital invested in CCUS projects with the goal of reducing emissions by at least 15 megatonnes of CO₂ annually. This bill like the 45Q .will come into effect in 2022, Effective and efficient introduction of tax incentives for CCUS requires that they be carefully legislated in Korea.
  • 10.

    A Study on an Improvement Plan for the Legislative System to Prevent Children Traffic Accident

    seon eun ae | 2021, 96() | pp.269~285 | number of Cited : 1
    In our society, children are in the physically, mentally, emotionally and economically immature state, thereby being the subjects that will need to be socially protected safely for growing up to be an adult. But ensuring children's social safety right is not stipulated as a basic right in the Constitution. Still, the responsibilities of the state and local governments pertinent to children's safety rights are specified in 「Act on the Safety Management of Children」, which was enacted on May 26, 2020 with the aim of forming an environment where children can enjoy a happy and healthy life, through prescribing the matters for preventing a danger to children's lives and bodies and for securing children’s safety. Especially, owing to the revision of 「Act on the Aggravated Punishment, etc. of Specific Crimes」 pertinent to children traffic accident that may be considered to be a danger to children’s lives and bodies, the aggravated punishment for children's fatalities was established in school zone for children(under the age of 13). But whether it is the effective legislative improvement for children’s safety right in terms of this is being still raised a lot of controversy. As children’s traffic accident is the one that took place in the immaturely physical and mental state compared to an adult, its damage is shown to be bigger than an adult. Thus, to reduce children’s traffic accident and to guarantee safety right, the effective legal improvement is judged to be likely to be necessarily made. In terms of this, an appropriate improvement measure must be devised by various researches in consideration of characteristics in children traffic accident. This is in the reality of being emerged the necessity of establishing the direction of a policy that approaches in the social-security dimension of safety rights for children as well as in the aspect of simply diminishing children traffic accident. Therefore, what improves the relevant legislative system to children traffic accident and suggests an efficient policy with regard to children’s safety right should lead to allowing the essential education for preventing traffic accidents in children to be possibly carried out and to making a prompt action for this be taken systematically given the occurrence of children traffic accident. The perception in the country and society on children traffic accident as a serious social issue will lead to necessarily ensuring children’s safety right.
  • 11.

    A Legal and Institutional Study on the for supporting end-of-care children

    Oh Sam Gwang | 2021, 96() | pp.287~302 | number of Cited : 0
    As a legal and institutional research for supporting the children discharged from the out of home care, the purpose of this study is to suggest a policy measure that will need to be developed henceforth through the legal and institutional maintenance on this after considering the problems of the support policies that the nation and the local government are enforcing now for the children discharged from the out of home care. The aim is to keep them safely in our society and to make them available for proceeding with playing enough role as a social member through preventing the children discharged from the out of home care from becoming a criminal or living as a maladaptor with failing to adjust to society hereafter. To support these people realistically and effectively, a plan needs to be pursued available for positively supporting and managing these people. First of all, aiming to help the self-reliance support more systematically by improving the contents and procedures of the support targets and the independent living services, the support is needed through developing the individual-based support plans and the efficient self-reliance support programs based on the operation of the institution dedicated to the self-reliance support. Also, if the management and counseling are institutionally operated through the personnel in charge of the support available for providing the necessary aid smoothly so that each individual can adapt to society well given leaving the facility after the protection is over, and through the support from a professional counselor who can relieve their concerns and difficulties in adjusting to society, it can prevent them from failing to be benefited or supported due to the lack of information, resulting in being likely much helpful to their adapting to society. And as a more specific support plan, given expanding the scope of the self-reliance support through specifying the psychological & emotional support and the medical support that do not currently have explicit regulations, the children discharged from the out of home care are judged to play a role fully as a social member by smoothly returning to normal social life without being no longer alienated from our society.
  • 12.

    A Study on the Current Status for the CCUS Legislation in the U.S.

    Seok,Ho-Young , Kim, Dong-Ryun | 2021, 96() | pp.303~324 | number of Cited : 5
    Due to global warming, abnormal climates such as heatwaves, heavy snow, typhoons, and forest fires are appearing all over the world, and South Korea that has a high proportion of fossil fuels and an industrial structure centered on manufacturing has also seen its average temperature rise 1.4℃ over the past 30 years, further intensifying its warming tendency. Following the adoption of the Kyoto Protocol(1997), which recognizes the seriousness of the climate change problem and obliges developed countries to solve it, the Paris Agreement, in which both developed and developing countries participated, took effect on November 4, 2016. South Korea ratified the Paris Agreement on November 3, 2016. Afterwards, South Korea announced the “2050 Carbon Neutralization System” and also adopted CCUS(Carbon Capture, Utilization and Sequestration) as a means for the carbon neutrality. CCUS is used in many countries as a means to reduce carbon dioxide. In particular, in the United States, which can be called an advanced CCUS country, it is implemented through various legislation and policies. In the U.S., CCUS is promoted by the Ministry of Energy and the Environmental Protection Agency, and the Clean Air Act, Safe Drinking Water Act, Bipartisan Budget Act, Energy Act of 2020, Clean Economic Jobs and Energy Act, and Energy Policy Act. Even today, the U.S. has recently presented the few notable legislation bills such as the ACCESS 45Q Act, the Carbon Capture Modernization Act, the CO2 Storage and Emission Reduction Act(SCALE Act of 2021), the Carbon Capture, Utilization, and Storage Tax Reduction Act(Carbon Tax Credit, and Storage Tax Credit, 2021). The legislation in the U.S. on CCUS has various implications, including the need for technology development, infrastructure and market creation, the need for a single CCUS Act, active incentives for central and local governments, measures to strengthen public acceptance, prevent possible damage, and establish an effective implementation system. Through this, it is necessary to continue discussions in the process of legislation in Korea.