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The Perspectives of the Compensation

  • Public Land Law Review
  • Abbr : KPLLR
  • 2008, 41(), pp.1-22
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

PARK KYUN SUNG 1

1경희대학교

Accredited

ABSTRACT

There have been many research works on compensation and continued revisions of compensation-related laws. However, the current Korean compensation law system still leaves a few unsolved problems. The problems include compensation problems relating to development profits and equity problems concerning enjoyment of benefits and apportionment of losses among developers, expropriatees, and neighboring land owners. Considering that the main purpose of the compensation for a property taking is to restore the expropriatee's living standard to the status quo ante, the compensation for a loss in living standard must be expanded. Even though almost all administrative law scholars agree with the necessity of the living standard compensation, there have been, both legislatively and theoretically, bitter disputes over how to compensate. The concept of compensation should be broader than it traditionally was. Accordingly, the concept of compensation should include the compensation for infringement on life or health, the indirect compensation, and the compensation for a loss in living standard. For caution's sake, the compensation should be distinguished from the social security which is based on the constitutional right to live. In the interpretation of “just compensation” under Article 23(3) of the Constitution, scholars are divided on whether it means “complete compensation“ or ”adequate compensation.“ Recently, a new theory argues that complete compensation, which is covering the living standard compensation, means restoring the expropriatee's standard of living to that he or she enjoyed prior to the taking. The Constitutional Court of Korea takes the complete compensation theory. Some scholars argue that development gains should be compensated. However, it is the generally accepted theory that development gains should be excluded from the calculation of compensation. According to the majority's theory, as the gains are windfalls of public development projects, not fruits of expropriatees' efforts or investments, they should be returned to the society, not to the expropriatees. Under the Land Compensation Act, the general rule is that the increased value from a development should be excluded from a sum of compensation; however, in some cases, the development gains is included in compensation. Although it goes without dispute that the compensation for a loss in living standard is necessary, the following issues are arguable and complex: the legal basis for the living standard compensation and the system, scope, and contents of the living standard compensation. There is no general provision for the living standard compensation. Article 79(2) of the Land Compensation Act provides that ”compensations for other losses from a public development shall be governed under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation.“ This Article can be interpreted as the legal ground for the living standard compensation and the Enforcement Rule of the Land Compensation Act provides enumerated items of the living standard compensation. In addition, the Land Compensation Act contains a general provision for relocation measure. Except for the relocation measure, specific acts stipulate types and contents of the living standard compensation. Consequently, the details of the living standard compensation often differ according to acts without any main reason. Livelihood or living protection measure means restoring a expropriatee's economic standard of living to the original state prior to the land taking. There is no general provision for the livelihood protection. The Land Compensation Act includes a statutory provision only for relocation measure, not for livelihood protection measure. Some but not many individual acts include the provision for livelihood protection measure. The relocation measure must cover a renter whose loss of residence is not recoverable because the purpose of the living standard compensation is to restore expropriatees' living standards to the status quo ante. In order to achieve the purpose of the living standard compensation, the maintenance of original living standards, the relocation measure should be combined with the livelihood protection measure. The equity problems arise when expropriatees lose development gains while the neighboring land owners enjoy land betterment from a public development project. Legislation is required to recapture increased values of the neighboring lands. Also, the equity problems arise when individual acts that contain settlement measures have different compensation provisions for settlement. In conclusion, the efficiency in public works and the protection for property rights should be balanced each other. Justice for compensation should be done by materializing the constitutional principle of just compensation. In this context, compensation related laws should be reexamined. The equity problems among expropriatees, developers, and neighboring land owners should be considered. The coverage of living standard compensation must be expanded. The distinction and the cooperative mechanism between the living standard compensation and the social security are at issue.

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