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Study on the Taking of Properties in the U.S. Constitution

  • Public Land Law Review
  • Abbr : KPLLR
  • 2008, 42(), pp.21-47
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

In-Sun Seok 1

1이화여자대학교

Accredited

ABSTRACT

The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use, without just compensation. This clause places two limitations on the government when it takes private property. The government has to take private property only for public use and pay just compensation for the private owner. The Fifth Amendment allows private property to be taken by eminent domain only for public use. The U.S. Supreme Court cases survey informs us that the term ‘public use’ has been broadly interpreted by the Court. Takings scholarship has focused primarily on the liability question, that is, what government actions are counted as takings of private property. Until now, considerable uncertainties have prevailed regarding the appropriate criteria to distinguish between compensable and noncompensable impositions of property losses by the government. In solving this issue, it is a prior condition that it has to be considered what criteria might best serve to draw the taking-regulation distinction. This article examines the theories on taking of private property, especially focusing on types and conditions of taking in the U.S. Supreme Court cases. That's why most theories on the taking of private property have been embodied through interpretation of the cases by the U.S. Supreme Court, even though they seem to be often unclear and inconsistent. Chapter Ⅰ introduces the meaning of researching the legal issues in takings problem. Chapter Ⅱ brings in and explores key matters of the taking clause in the U.S. Constitution. Chapter Ⅲ examines an analysis of takings' essentials, such as eminent domain, the taking-regulation distinction, the variation in the U.S. Supreme Court's approaches about it and the evolution of the concept of what constitutes public use. Chapter Ⅳ generally deals with a comparative study about legal systems of taking in both Korea and the U.S. Finally we can find that there are many legal points which are similar to those of korean taking system and also that there are the peculiar legal points of U.S. taking system, mainly embodied by the U.S. Supreme Court cases.

Citation status

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