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Restrictions on Property Rights and Compensation for Losses for Public Projects Focusing on Constitutional Issues

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(1), pp.215-254
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : February 14, 2024
  • Accepted : February 24, 2024
  • Published : February 29, 2024

Chon, Myoun-Gju 1,  Kim, Sang-Jin 1

1세명대학교

Accredited

ABSTRACT

According to the Constitution, our law is divided into three areas: criminal law, civil law, and administrative law. Among these, administrative law is based on the idea that individual rights can be limited to some extent for the public good. An example of this is land expropriation, which is the removal of private land for public works. However, in this case, the land cannot be received for free and the value of the land must be compensated. This is generally referred to as compensation for losses under public law. There are two methods for determining the degree of compensation for losses: the full compensation theory and the equivalent compensation theory. The full compensation theory is the idea that in the case of land expropriation, the original value of the land should be fully compensated. On the other hand, the theory of equivalent compensation states that only the amount judged to be reasonable depending on the situation should be compensated, and special situations such as the land reform that distributed the land of large landowners after liberation to farmers at low prices are also explained by this idea. As can be seen from this conflict of theories, the idea of ​​compensation provides a hint when thinking about what true equality and fairness are in the real world. In the field of compensation for damages, there are separate laws such as the Land Expropriation Act. However, there is no general law with the same name as the National Compensation Act that applies in all cases. Instead, Article 23 of the Constitution, which guarantees the people's property rights, is used as the basis for claiming statutory damages. Article 23, Paragraph 3 of the Constitution stipulates that “expropriation, use or restriction of property rights for public necessity and compensation therefor shall be made by law, and fair compensation shall be paid.” The Supreme Court believes that if a citizen's property rights are violated and there are no legal provisions for appropriate compensation for the loss, he or she can request compensation for the loss from the court. As can be seen from this, it is important to consider not only the interpretation of individual administrative laws, but also how property rights guaranteed by the Constitution are violated and the amount of compensation. Article 23, Paragraph 1 of the Constitution stipulates that “the property rights of all citizens are guaranteed. Their content and limits shall be determined by law.” The Constitution guarantees the private property system and individual property rights, but in some cases, these may be restricted for the sake of public welfare. In this case, compensation must be given to those who have made special sacrifices in relation to property rights in order to ensure that property rights are guaranteed and to prevent disadvantages only to specific people. Here, whether an infringement is a special victim or not depends on whether the infringement targets the general public broadly or is limited to specific individuals or groups, or whether the infringement falls within the range of acceptable constraints on property rights. In addition, it is expected that the decision will be made by considering two factors, including whether it is strong enough to infringe on the essential content of property rights. Since the basis of our judicial system consists of the principles of private property and private autonomy, infringement of private property rights is not permitted even if compensation is made. However, since the private property system is originally based on liberalism and individualism, and its ideology was adopted for the purpose of establishing a fair and equitable social order, the principle of good faith and the prohibition of abuse of rights exist as constraints inherent in the system. The exercise must be restricted for the public interest. However, since these restrictions are exceptions to the principle of absolute ownership, strict requirements are required for restrictions on ownership, and the interpretation of laws is also subject to interpretation. The Land Expropriation Act stipulates procedures for the government's land expropriation for the public interest, promotes the public interest by stipulating the requirements, procedures and effects of expropriation or use of land necessary for public interest projects, and compensation for losses resulting therefrom, and protects private property. It is possible to connect with . He explained that the purpose is to contribute to the appropriate and rational use of the national land. For example, if land is needed to build roads, dams, schools, parks, etc., it is mandatory to acquire the land from the landowner under this law. Since the land is being used for the public good without the rights of the landowner, it is clear that the formal and substantive requirements for compensation have been met, so compensation is necessary. The land expropriation process begins with an entrepreneur planning a public project receiving approval from the Minister of Land, Infrastructure and Transport or the head of a metropolitan local government. Next, the business operator who has received business approval applies for an expropriation decision to the expropriation committee, and when the land expropriation committee hears and makes a ruling, the business operator can acquire the land. However, under normal circumstances, land expropriation procedures are rarely carried out suddenly, and a business operator must voluntarily enter into a sales contract with the owner after receiving business certification. Since this is a voluntary sale, you can refuse if you do not want to sell. Failure to comply with the voluntary sale will result in confiscation. The Land Expropriation Act applies only when the amount of compensation is not agreed upon or when there is a dispute over land ownership.

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