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A Law and Economic Analysis of Repurchase in Takings Issues

  • Korea Real Estate Review
  • 2011, 21(2), pp.39-68
  • Publisher : korea real estate research institute
  • Research Area : Social Science > Law > Law of Special Parts > Law of Real Estate

Sungkyu Park 1

1(재)한국부동산연구원

Accredited

ABSTRACT

Repurchase is when part or all of land condemned for a public project is no longer needed due to cancellation or modification of the project and the land is purchased by the land owner or his/her legal heir to restore ownership. In 2005, the Constitutional Court ruled that the Land Compensation Act, Article 91, paragraph 4, that provides for development advantage portion of land price increase profits occurred in the repurchasing process to be allocated to the condemner is constitutional. However, when seen from the law and economics perspective that introduced repurchase rights in the first place to protect private property rights and to restrain over-condemnation opportunism on the part of the condemner, this Constitutional Court ruling must be reconsidered. Institutionally leaving all decision-making, including condemnation and project plan modification/cancellation, to the condemner and giving the condemner an opportunity to pursue profits from land-price increase means very high probability of morally hazardous doings by the condemner. An analysis of actual cases in which condemners filed suits for allocation of land-price increase profits showed that only 3.9 years is passed from land taking to repurchasing and that various opportunism possibilities exist. Under these circumstances, the policy must be reestablished to provide stronger protection for repurchasers in order to ensure more prudent decisions by land condemners in selecting land and to secure firm implementation of public projects.

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