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A Study on the Assessment of Compensation Concerning Land Illegally Altered in Form and Nature

  • Korea Real Estate Review
  • 2005, 15(2), pp.103-125
  • Publisher : korea real estate research institute
  • Research Area : Social Science > Law > Law of Special Parts > Law of Real Estate

임호정 1

1가람감정평가법인

ABSTRACT

As the land illegally altered in form and nature shall be assessed in consideration of the situation of its utilization, in accordance with Land Expropriation and Compensation Act, the relevant expenses incurred from its alteration, and profit derided from its development could be excluded from the said compensation. However, since the above policy has been reflected in the Administrative Regulation of the Government, It has often argued that this regulation could inevitably restrict proper protection of the right of land. As mentioned above, in case the land altered in form and nature is to be assessed in accordance with an Administrative Regulation, and the Administrative Regulation has not been regulated as a Presidential Decree, the Regulation may possibly restrict the proper right of land. Furthermore, the land illegally altered in form and nature before January 17,1995 is to be assessed, not on present situation of land, but on previous situation of the land. This policy may be feared to invite another argument that its implementation will contradict with non-retroactive principle of law. We declines to state that such policy would be a reasonable one. In view of these, I would like to present following two suggestions to readjust the policy in due course to meet the necessity of justifiable compensation of land. Firstly, the means and process of the proper compensation on the land altered in form and nature should be described not in the Administrative Regulation of the Ministry of Construction and Transportation, but in the respective Presidential Decree. Trough this measures to be taken, the pending argued problem to infringe the proper land right by the Administrative Regulation can easily be resolved. Secondly, the land altered in form and nature before January 17,1995 should be regarded as legitimate, enabling to uphold the protection of the property rights.

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