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Systematization of the Korean theory through comparison legal examination of the loss compensation concept - Mainly on the consistency reconsideration of the loss compensation theory of our country through Korea, Japan, loss compensation theory analysis of Germany -

  • DONG-A LAW REVIEW
  • 2015, (68), pp.245-279
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

YeonPal Cho 1

1동원과학기술대학교

Accredited

ABSTRACT

Ossennbühl said that Because the precedent after the gravel collection judgment(BVerfGE 58,300(324)) is hard to be called the expropriation similar infringement. It should call yourself “.Anspruch aus rechtswidriger Eigentumsverletzung”. Therefore, I call an expropriation resemblance infringement theory before the gravel collection judgment an old expropriation resemblance infringement theory. And I call an expropriation resemblance infringement theory after the gravel collection judgment a new expropriation resemblance infringement theory. I think that I can reduce the confusion in many theories by doing it in this way. And in the Japan, it classify when a non-property right is violated when a property right is violated by an illegal no fault act. In the former case, 'Theory to be able to demand loss compensation from a court' is a common view, a precedent. In the latter case, (when a non-property right is violated) there is the theory that loss compensation based on constitution Article 29 Section 3 is possible, but there is the theory that there is not. And in the korea, there is an opinion to object to by the introduction of the separation theory. The opinion says that there is a difference between expropriation (Enteignung) in the German fundamental law and the Korean constitutional rules. Therefore, it is said that the opinion cannot just receive a German separation theory. However, the German civil court sorted restriction on a private right for public utilities as follows. the restriction on a private right for public utilities that it is impossible to submit to. and the restriction on a private right for public utilities that it cannot be hoped that submit to it without compensation. And, in the case of the former, assumed it "a limit" by fundamental law Article 14 Clause 3. Therefore, it is thought that can adopt the separation theory as far as I interpret a limit of constitution Article 23 Clause 3 like the former in Korea. I agree to the introduction of the separation theory in such a meaning and answer in the affirmative in the introduction of the new expropriation resemblance infringement theory. However, I object to the introduction of the old expropriation resemblance infringement theory. A separation theory and the old expropriation resemblance infringement theory are because they cannot coexist on the logic.

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This paper was written with support from the National Research Foundation of Korea.
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