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The Public Concept of Land Ownership, its Constitutional Limits, and Alternatives

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(2), pp.507-534
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : May 3, 2024
  • Accepted : May 22, 2024
  • Published : May 31, 2024

Kim, Yoon Hong 1

1전주대학교

Accredited

ABSTRACT

Land has been recognized as one of the important forms of private property within the capitalist economic system. However, there has been a fundamental and philosophical question continuously posed about whether land, as a permanent natural resource, can be the subject of private and perpetual ownership. This question is especially important in exploring the tense relationship between the public nature of land and private property rights. Historically, some cultures and societies have denied the private ownership of land, arguing instead that it should be owned by the state or the king, that is, the public. This perspective forms the basis of the land public concept, which views land as public property and prioritizes public interest over private profit-seeking. The land public concept emphasizes the public nature of land, proposing that the exercise of private property rights should be somewhat limited for public purposes. This concept has been suggested as a means to overcome the social and economic harms that arise when private ownership of land becomes excessively concentrated. Excessive concentration of private land ownership can lead to various adverse effects, such as skyrocketing housing prices, deepening social inequality, and environmental destruction. Therefore, the land public concept emphasizes the public management and use of land to address these issues. Legal and policy efforts to realize the land public concept have been made in various forms by governments around the world. In our country, examples such as the three laws of the land public concept, the greenbelt policy, the recapture of profits from public rental housing, and the regulation of ownership and transactions are efforts to strengthen the public nature of land. These policies and legal frameworks have been introduced primarily to distribute the benefits derived from land publicly and to enhance public welfare. However, these efforts have faced complex issues such as conflicts of interest among various social classes, long-term legal disputes, and policy frustrations. This shows that land policy is a complex task that must consider various factors beyond the distribution of benefits, including the basic rights of citizens, public welfare, and economic sustainability. The realization and evaluation of legal frameworks related to the land public concept have reached a critical phase through the rulings of the Constitutional Court. The Constitutional Court has played an important role in determining whether such legal frameworks comply with the constitution, respect the basic rights of citizens, and achieve public interest. The decisions of the Constitutional Court have sometimes demanded amendments or abolition of legal frameworks, and at other times, they have served as an opportunity to present new policy directions. Through this process, the Constitutional Court has played a significant role in ensuring that the land public concept can be implemented in a form that the majority of citizens can agree with. Ultimately, the discussions and practices surrounding the land public concept suggest that a continuous balance and adjustment between the public nature of land and private property rights are required, and this balance must be reflected in legal and policy frameworks.

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