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Constitutional Review on Restriction of Exercise of Repurchase Right

  • Korea Real Estate Review
  • 2011, 21(3), pp.205-227
  • Publisher : korea real estate research institute
  • Research Area : Social Science > Law > Law of Special Parts > Law of Real Estate

YONJU JUNG 1

1성신여자대학교

Accredited

ABSTRACT

This article addresses the problems of repurchase right according to Art. 91 (1) of the Act concerning the acquisition of land and etc. and the compensation thereof for public use(‘the Act’) in the light of constitutional guarantee of property right. The 2008Hun-Ba26, March 31, 2011 Case of the Constitutional Court triggered off this research. In the Case, the Court decided that Art. 91 (1) of the Act which restricts the exercise period of repurchase right is constitutional. However, the restriction form and the length of the exercise period of repurchase right cannot be justified in the light of the difficulty of actual exercise of repurchase right. On the other hand, Art. 91 (1) of the Act admits the objects of the repurchase right only to the land. Accordingly, the buildings and etc. which are taken for the public use are not included to the objects of repurchase right. Art. 91 (1) of the Act, however, cannot be justified in the light of the existenceguarantee of property right. Art. 91 (6) of the Act which restricts the exercise of the repurchase right in the case of the change of the project for public use cannot be justified because of same reasons. Besides, the repurchase right system of Art. 91 of the Act is problematic with regard to restriction of the qualification of repurchase right and exercise process and method thereof in the light of the guarantee of property right. In short, the repurchase right system of Art. 91 of the Act should be reformed according to the spirit of existenceguarantee of property right. For example, the objects of repurchase right have to be extended to the builings, other rights, etc. besides land which were taken for the public use. Art. 91 (6) of the Act which restricts the exercise of the repurchase right in the case of the change of the project for public use, should be abolished or Art. 91 (6) of the Act must be amended in order that the changed project may be reexamined in all aspects of constitutional conditions of the expropriation.

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