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Legal review of private use and compensation system in land taking procedures focusing on the comparison of East Asian countries land taking system

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2023, 11(1), pp.263-308
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : January 30, 2023
  • Accepted : February 25, 2023
  • Published : February 28, 2023

Choi, Yong Hyun 1 Kim, Sang-Jin 1

1세명대학교

Accredited

ABSTRACT

This research was conducted as part of a comparative study of land use systems in four jurisdictional regions in Korea, China, Japan, and Taiwan in the era of population decline. However, British, USA, German and French laws are also mentioned in that section. Except for China, the land-taking legislation in Korea, Japan, and Taiwan seems to have considerable commonality under the influence of German law, but there are significant differences in the operation and theoretical aspects of the system. The jurisdiction of the four East Asian countries has a certain cultural commonality influenced by China, and has a common legal tradition of the succession of Western legal system after modern times. In addition, although the unfortunate history of colonial dominant is involved, it has developed with reference to the mutual legal system before and after World War II. Starting from the discussion in this paper, the future task of this study will be to reveal the general significance of the comparison method in four East Asian jurisdictions as well as the comparison of the land use legislation system. Originally, the two concepts of takings and publicity are closely related. It is thought that the term “taking of land” was the first to use in the “On the Law of War and Peace(De jure belli ac pacis).” Hugo Grotius claims that the government has the power to taking for the public good, and that the public interest is the purpose and premise of the award. Over the centuries, most western countries have embraced that view. The definition of power of acceptance is the classical definition of the state’s power to possess private property for public purposes. No other country in the world has a clear definition of the public interest in its land use system. Neither the Anglo-American law state represented by the United States nor the Continental law state represented by Germany has a general view of public interest. Turning to the world, countries that adopt private property systems are common, and in modern society, the basic theory of land-taking systems originates from privately owned countries. To protect private property as a basic philosophy, a series of policies, such as “acceptable taking business,” have been established in order to avoid and limit the deviation and abuse of public power in administrative taking. It is universally seen that the judgment and recognition of “for the public” or “for the public” in the structure of the taking laws of countries around the world is set as a premise for activating the right to condemnation. In this article, I examine division of public interests and private interests that is the legal issues related to land taking for private purposes, and examines legal issues in land taking focusing on the response to the situation of unpopular land increase due to population decline.

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